HISTORICAL    AND    LEGAL 

EXAMINATION 


OF   THAT  PART   OF  THE 


DECISION  OF  THE  SUPREME  COURT  OF  THE  UNITED  STATES 


IN   THE 


DEED  SCOTT  CASE, 


WHICH   DECLARES   THE 


UNCONSTITUTIONALLY  OF   THE  MISSOURI  COMPROMISE  ACT, 

AND  THE    SELF-EXTENSION  OF  THE    CONSTITUTION    TO 

TERRITORIES,  CARRYING  SLAVERY  ALONG  WITH  IT. 


TO 

CONTAINING  : 

I.  THE  DEBATES  IN  THE  SENATE  IN  MAECH,  1849,  BETWEEN  ME.  WEBSTEE  AND  MB.  CALHOUN, 
ON  THE  LEGISLATIVE  EXTENSION  OP  THE  CONSTITUTION  TO  TEEEITOEIES,  AS  CONTAINED  IN  VOL. 

II.   CH.   CLXXXII.   OF  THE  "THIRTY  YEABS'   VlEW." 

II.  THE  INSIDE  VIEW  OP  THE  SOUTIIEEN  SENTIMENT,  IN  EELATION  TO  THE  WILMOT  PEOVISO, 
AS  SEEN  IN  VOL.  II.  Cn.  CLXVIII.  OP  THE  "THIETT  YEABS'  VIEW." 

III.  EETIEW  OF  PRESIDENT  PIEECE'S  ANNUAL  MESSAGE  TO  CONGRESS   OF  DECEMBER,  1856, 

60  FAB  AS  IT  EELATES  TO  THE  ABROGATION  OF  THE  MISSOURI  COMPROMISE  ACT  AND  THE  CLASSI 
FICATION  OF  PARTIES. 


BY    THE 

AUTHOR  OF  THE  "  THIRTY  YEARS'  VIEW." 


7# 


t^n****  <*  4si\>io-^   \ 


NEW  YORK: 
D.    APPLETON    AND     COMPANY, 

346    &    348    BEOADWAY,    NEW    YORK. 

1857. 


Entered,  according  to  Act  of  Congress,  in  the  year  1867,  by 

D.  APPLETON  &  COMPANY, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Southern  District  of 

New  York. 


NOTIFICATION  TO  THE  READER. 


The  writer  of  this  "  Examination  "  was  breaking  down  under 
the  approaches  of  a  terrible  attack,  while  he  was  still  engaged 
in  writing  it,  and  was  prostrate  before  it  was  finished,  leaving 
some  heads  untouched,  and  the  outline  of  others  only  sketched. 
Among  these  last  was  the  head  which  related  to  the  temporary 
government  in  Florida,  and  the  transactions  under  it ;  General 
Jackson  being  Governor,  and  commissioned  (according  to  the 
act  under  which  he  was  appointed)  with  the  powers  of  Captain- 
General  and  Intendant  of  Cuba,  the  Floridas  having  been  a  de 
pendency  of  that  Captain-Generalship.  The  "  Examination  " 
states  (and  all  whose  memory  or  home  reading  goes  back  twen 
ty-five  years,  well  know  the  fact),  that  the  power  of  Captain- 
General  and  Intendant  was  no  barren  sceptre  in  Jackson's  hand ; 
that  he  found  occasion  to  use  the  power,  and  did  so  with  the 
energy  which  belonged  to  his  nature,  and  was  sustained  by  Mr. 
Monroe's  Administration.  But  the  history  of  the  transactions 
was  not  gone  into,  and  the  general  assertion  remained  without 
the  justification  which  this  history  would  give  it.  That  history 
is  now  supplied,  and  will  be  found  in  the  Abridged  Debates  of 
Congress,  text  and  notes  (volume  vn.,  now  about  ready  for  the 
press) ;  and  is  surely  of  a  character  and  of  an  authority  to  put 
an  end  to  the  "  Opinion  "  which  nullifies  the  Missouri  Compro 
mise  Act,  and  self-extends  the  Constitution  to  territories.  With 
out  going  further  into  that  history  in  this  brief  post  scriptum  no 
tification,  and  confining  himself  to  the  precise  point  in  issue,  the 


NOTIFICATION   TO   THE   READER. 


writer  will  say,  that  the  Administration  of  Mr.  Monroe,  express 
ly,  by  unanimous  Cabinet  decision ;  and  each  House  of  Con 
gress,  impliedly,  and  without  division,  decided  that  no  part  of 
the  Constitution  and  no  Act  of  Congress  went  to  a  territory,  un 
less  extended  to  it  by  Congress.  The  occasion  for  making  this 
decision  was  this : — Judge  Fromentin  issued  a  writ  of  Habeas 
Corpus  to  have  the  body  of  Ex-Governor  Callava  (then  impris 
oned  by  the  order  of  General  Jackson)  brought  before  him, 
claiming  the  right  to  do  so  under  the  Constitution,  and  under 
the  laws  of  Congress,  vesting  U.  S.  Judges  with  that  power. 
Gov.  Jackson  denied  the  power,  and  dealt  militarily  with  the 
Judge  for  issuing  the  writ,  telling  him  that  no  part  of  the  Con 
stitution  had  been  extended  to  the  Floridas,  nor  any  Act  of 
Congress,  authorizing  him  to  issue  the  writ.  The  case  was 
brought  before  the  President  and  before  Congress,  and  received 
the  decision  above  stated.  And  this  writer  takes  it  upon  him 
self  to  affirm  (and  he  was  cotemporary  with  the  event,  as  well 
as  having  now  traced  its  history)  that  the  decision  of  the  Cab 
inet  was  unanimous  upon  the  point  here  mentioned,  namely : 
that  Judge  Fromentin  had  no  right  to  issue  the  writ  of  Habeas 
Cwpus,  because  no  part  of  the  Constitution,  nor  any  Act  of 
Congress  authorizing  the  writ,  had  been  extended  by  Congress 
to  that  territory. 

WASHINGTON  CITY,  NOT.  OTH,  1857. 


IOTKODUCTOKY  NOTE. 

THE  title  is  an  index  to  the  character  of  this  Examination, 
which  only  goes  to  the  two  points  mentioned ;  and  goes  to  them 
because  they  are  held  to  be  political,  affecting  Congress  in  its 
legislative  capacity,  and  on  which  the  Supreme  Court  has  no 
right  to  bind,  or  control  that  body :  as  heretofore  seen  in  the 
case  of  the  Bank  of  the  United  States,  the  Sedition  law,  &c. ; 
cases  in  which  Congress  followed  its  own  opinion  of  its  own 
powers,  regardless  of  the  Court's  decision ;  and  the  Court  had 
no  way  to  compel  it  to  obedience,  or  to  punish  it  for  contempt. 

Congress  holds  its  powers  from  the  Constitution,  where  every 
grant  of  authority  is  preceded  by  the  words — "Shall  have 
power  to : "  and  to  the  support  of  which  the  members  are 
sworn.  The  grant  of  power  is  from  the  Constitution,  and  the 
oath  is  to  the  Constitution  ;  and  it  is  written,  that  its  words,  al 
ways  the  same,  may  be  always  seen,  and  no  excuse  for  disre 
garding  them.  The  duty  of  the  member — his  allegiance — his 
fealty — is  to  the  Constitution ;  and  in  performance  of  this  duty 
—in  the  discharge  of  this  allegiance — in  the  keeping  of  this 
fealty — he  must  be  governed  by  the  words  of  the  instrument, 
and  by  the  dictates  of  his  conscience.  The  member  may  en 
lighten  himself,  and  should,  with  the  counsels  of  others :  but  as 
authority — as  a  rule  of  obligation — as  a  guide  to  conduct — the 
Constitution  and  the  oath  alone  can  govern ;  and  were  it  other 
wise — was  Congress  to  look  to  judicial  interpretation  for  its 
powers — it  would  soon  cease  to  have  any  fixed  rules  to  go  by  : 
would  soon  have  as  many  diverse  interpretations  as  different 
courts  :  and  the  Constitution  itself,  like  the  Holy  Scriptures, 
in  the  hands  of  councils  and  commentators,  would  soon  cease  to 
be  what  its  framers  made  it. 


INTKODUCTOEY  NOTE. 

The  power  of  the  Court  is  judicial — so  declared  in  the  Con 
stitution;  and  so  held  in  theory,  if  not  in  practice.  It  is  limited 
to  cases  "m  law  and  equity  f1*  and  though  sometimes  en 
croaching  upon  political  subjects,  it  is  without  right,  without 
authority,  and  without  the  means  of  enforcing  its  decisions.  It 
can  issue  no  mandamus  to  Congress,  or  the  people,  nor  punish 
them  for  disregarding  its  decisions,  or  even  attacking  them. 
Far  from  being  bound  by  their  decisions,  Congress  may  proceed 
criminally  against  the  judges  for  making  them,  when  deemed 
criminally  wrong — one  house  impeach  and  the  other  try :  as 
done  in  the  famous  case  of  Judge  Chase. 

In  assuming  to  decide  these  questions, — (Constitutionality  of 
the  Missouri  Compromise,  and  the  self-extension  of  the  Consti 
tution  to  Territories,) — it  is  believed  the  Court  committed  two 
great  errors :  first,  in  the  assumption  to  try  such  questions: 
secondly,  in  deciding  them  as  they  did.  And  it  is  certain  that 
the  decisions  are  contrary  to  the  uniform  action  of  all  the  de 
partments  of  the  government — one  of  them  for  thirty-six  years ; 
and  the  other  for  seventy  years  ;  and  in  their  effects  upon  each 
are  equivalent  to  an  alteration  of  the  Constitution,f  by  insert- 

*  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity,  arising  under 
this  Constitution,  the  laws  of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  &c. — Article  ///.,  Sec.  2. 

•{•  "  The  question  here  is,  whether  they  (the  arguments  referred  to)  are  sufficient  to 
authorize  this  Court  to  insert  into  this  clause  of  the  Constitution  an  exception  of  the 
exclusion  or  allowance  of  slavery,  not  found  therein,  nor  in  any  other  part  of  that  in 
strument.  To  ingraft  on  any  instrument  a  substantire  exception  not  found  in  it,  must 
be  admitted  to  be  a  matter  attended  with  great  difficulty.  And  the  difficulty  increases 
with  the  importance  of  the  instrument,  and  the  magnitude  and  complexity  of  the 
interests  involved  in  its  construction.  To  allow  this  to  be  done  with  the  Constitution, 
upon  reasons  purely  political,  renders  its  judicial  interpretation  impossible — because 
judicial  tribunals,  as  such,  cannot  decide  upon  political  considerations.  Political 
reasons  have  not  the  requisite  certainty  to  afford  rules  of  juridical  interpretation. 
They  are  different  in  different  men.  They  are  different  in  the  same  men  at  different 
times.  And  when  a  strict  interpretation  of  the  Constitution,  according  to  the  fixed 
rules  which  govern  the  interpretation  of  laws,  is  abandoned,  and  the  theoretical 
opinions  of  individuals  are  allowed  to  control  its  meaning,  we  have  no  longer  a  Con 
stitution  ;  we  are  under  the  government  of  individual  men,  who  for  the  time  being 
have  power  to  declare  what  the  Constitution  is,  according  to  their  own  views  of  what 
it  ought  to  mean.  When  such  a  method  of  interpretation  of  the  Constitution  obtains, 
in  place  of  a  republican  Government,  with  limited  and  defined  powers,  we  have  a 
Government  which  is  merely  an  exponent  of  the  will  of  Congress ;  or  what,  in  my 
opinion,  would  not  be  preferable,  an  exponent  of  the  individual  political  opinions  of 
the  members  of  this  Court." — Mr.  Justice  Curtis. 


INTEODUCTOKY   NOTE.  5 

ing  new  clauses  in  it,  which  could  not  have  been  put  in  it  at 
the  time  that  instrument  was  made,  nor  at  any  time  since,  nor 
now. 

The  Missouri  Compromise  act  was  a  "political  enactment" 
made  by  the  political  power,  for  reasons  founded  in  national 
policy,  enlarged  and  liberal,  of  which  it  was  the  proper  judge : 
and  which  was  not  to  be  reversed  afterwards  by  judicial  inter 
pretation  of  words  and  phrases. 

Doubtless  the  Court  was  actuated  by  the  most  laudable 
motives  in  undertaking,  while  settling  an  individual  controversy, 
to  pass  from  the  private  rights  of  an  individual  to  the  public 
rights  of  the  whole  body  of  the  people ;  and,  in  endeavoring 
to  settle,  by  a  judicial  decision,  a  political  question  which  en 
grosses  and  distracts  the  country :  *  but  the  undertaking  was 
beyond  its  competency,  both  legally  and  potentially.  It  had 
no  right  to  decide — no  means  to  enforce  the  decision — no  ma 
chinery  to  carry  it  into  effect — no  penalties  of  fines  or  jails 
to  enforce  it :  and  the  event  has  corresponded  with  these  in 
abilities.  Far  from  settling  the  question,  the  opinion  itself 
has  become  a  new  question,  more  virulent  than  the  former  ! 
has  become  the  very  watchword  of  parties  !  has  gone  into 
party  creeds  and  platforms — bringing  the  Court  itself  into 
the  political  field — and  condemning  all  future  appointments 
of  federal  judges,  (and  the  elections  of  those  who  make  the  ap 
pointments,  and  of  those  who  can  multiply  judges  by  creating 
new  districts  and  circuits,)  to  the  test  of  these  decisions.  This 
being  the  case,  and  the  evil  now  actually  upon  us,  there  is  no 
resource  but  to  face  it — to  face  this  new  question — examine  its 
foundations — show  its  errors ;  and  rely  upon  reason  and  intelli 
gence  to  work  out  a  safe  deliverance  for  the  country. 

Repulsing  jurisdiction  of  the  original  case,  and  dismissing  it 
for  want  of  right  to  try  it,  there  would  certainly  be  a  difficulty 
in  getting  at  its  merits — at  the  merits  of  the  dismissed  case 
itself ;  and,  certainly,  still  greater  difficulty  in  getting  at  the 
merits  of  two  great  political  questions  which  lie  so  far  beyond 
it.  The  Court  evidently  felt  this  difficulty,  and  worked  sedu- 

*  "  The  case  involves  private  rights  of  value,  and  Constitutional  principles  of  the 
highest  importance,  about  which  there  has  become  such  a  difference  of  opinion  that  the 
peace  and  harmony  of  the  country  required  the  settlement  of  them  by  a  judicial  de 
cision." — Mr.  Justice  Wayne. 


INTRODUCTORY   NOTE. 

lously  to  surmount  it — sedulously,  at  building  the  bridge,  long 
and  slender — upon  which  the  majority  of  the  judges  crossed  the 
wide  and  deep  gulf  which  separated  the  personal  rights  of  Dred 
Scott  and  his  family  from  the  political  institutions  and  the  po 
litical  rights  of  the  wrhole  body  of  the  American  people.  They 
did  their  work  to  their  satisfaction,  and  it  is  right  they  should 
have  the  benefit  of  it  in  their  own  words :  which  are  here  ac 
cordingly  given  : 

"  The  principle  of  law  is  too  well  settled  to  be  disputed,  that  a 
court  can  give  no  judgment  for  either  party,  where  it  has  no  jurisdic 
tion  ;  and  if,  upon  the  showing  of  Scott  himself,  it  appeared  that  he 
was  still  a  slave,  the  case  ought  to  have  been  dismissed,  and  the  judg 
ment  against  him  and  in  favor  of  the  defendant  for  costs,  is,  like  that 
on  the  plea  in  abatement,  erroneous,  and  the  suit  ought  to  have  been 
dismissed  by  the  Circuit  Court  for  want  of  jurisdiction  in  that  Court. 

"  But,  before  we  proceed  to  examine  this  part  of  the  case,  it  may 
be  proper  to  notice  an  objection  taken  to  the  judicial  authority  of  this 
Court  to  decide  it ;  and  it  has  been  said  that,  as  this  court  has  decided 
against  the  jurisdiction  of  the  Circuit  Court  on  the  plea  in  abatement, 
it  has  no  right  to  examine  any  question  presented  by  the  exception ; 
and  that  any  thing  it  may  say  upon  that  part  of  the  case  will  be  extra- 
judicial,  and  mere  obiter  dicta. 

u  This  is  a  manifest  mistake ;  there  can  be  no  doubt  as  to  the  juris 
diction  of  this  court  to  revise  the  judgment  of  a  circuit  court,  and  to 
reverse  it  for  any  error  apparent  on  the  record,  whether  it  be  the  error 
of  giving  judgment  in  a  case  over  which  it  had  no  jurisdiction,  or  any 
other  material  error  ;  and  this,  too,  whether  there  is  a  plea  in  abate 
ment  or  not. 

"  The  correction  of  one  error  in  the  Court  below  does  not  deprive 
the  appellate  court  of  the  power  of  examining  further  into  the  record, 
and  correcting  any  other  material  errors  which  may  have  been  commit 
ted  by  the  inferior  Court.  There  is  certainly  no  rule  of  law — nor  any 
practice — nor  any  decision  of  a  court — which  even  questions  this  power 
in  the  appellate  tribunal.  On  the  contrary,  it  is  the  daily  practice  of 
this  Court,  and  of  all  appellate  Courts  where  they  reverse  the  judgment 
of  an  inferior  court  for  error,  to  correct  by  its  opinions  whatever  errors 
may  appear  on  the  record  material  to  the  case  ;  and  they  have  always 
held  it  to  be  their  duty  to  do  so  where  the  silence  of  the  court  might 
lead  to  misconstruction  or  future  controversy,  and  the  point  has  been 
relied  on  by  either  side,  and  argued  before  the  Court." 


INTRODUCTORY   NOTE.  7 

This  is  the  justification  for  going  into  the  merits  of  the  Scott 
case  after  deciding  there  was  no  right  to  try  it :  (for  the  want 
of  jurisdiction  is  the  want  of  a  right  to  try,  or  even  to  examine 
a  case  :)  and  the  strength  of  this  justification,  compressed  into  a 
few  words,  seems  to  be,  that  the  Supreme  Court,  in  its  appel 
late  character,  has  a  right,  in  reviewing  judgments  at  common 
law,  to  go  beyond  the  errors  on  which  the  appeal  was  taken, 
and  search  for  other  errors  in  the  record  :  and  correct  all  that 
can  be  discovered.  Without  impugning  this  practice  in  the 
least — admitting  its  entire  correctness  in  cases  where  the  reason 
for  it  applies — it  is  believed  that  the  reason  for  the  practice  had 
no  application  in  this  case  :  that,  far  from  applying,  it  was  ab 
solutely  forbidden  by  the  reason  on  which  it  was  founded.  That 
reason  is,  that  a  return  of  the  record  to  the  Court  below  with 
errors  in  it,  would  be  a  silent  sanction  of  those  errors — would 
cause  them  to  be  repeated  by  the  court  below,  and  give  parties 
the  delay  and  cost  of  another  appeal ;  and  the  Supreme  Court 
the  trouble  and  care  of  a  new  decision.  But  that  delay,  and 
cost  and  trouble,  can  only  be  where  the  case  is  remanded  for  re 
trial,  and  never  when  it  is  remanded  to  be  dismissed  for  want  of 
jurisdiction.  In  this  latter  case  there  is  no  danger  of  a  repeti 
tion  of  the  error.  In  the  case  of  such  dismission  there  is  nothing 
further  fco1  the  Court  below  to  do — no  repetition  of  error  for  it 
to  commit — no  future  trouble  to  be  given  to  the  Court  above — 
nor  any  future  cost  or  delay  to  the  parties.  Tested  by  its  reason, 
and  this  rule  of  practice  could  not  gbtain  in  the  Dred  Scott 
case :  tested  by  actual  practice,  if  a  case  in  point — (dismission 
for  want  of  jurisdiction,  and  still  a  correction  of  all  discovera 
ble  errors) — can  be  found,  and  it  is  believed  the  rule  will  fail  in 
this  case  as  completely  for  want  of  precedent  as  for  want  of 
reason.  In  this  case,  the  suit  was  dismissed  for  want  of  juris 
diction,  and  that  in  the  first  step  of  the  plaintiff  in  getting  into 
court.*  He  was  turned  back  from  the  door,  for  want  of  a  right 
to  enter  the  court  room — debarred  from  suing,  for  want  of  citi- 

*  "  Upon  the  whole,  therefore,  it  is  the  judgment  of  this  Court,  that  it  appears  by 
the  record  before  us  that  the  plaintiff  in  error  is  not  a  citizen  of  Missouri,  in  the  same 
sense  in  which  that  word  is  used  in  the  Constitution ;  and  that  the  Circuit  Court  of 
the  United  States,  for  that  reason,  had  no  jurisdiction  in  the  case,  and  could  give  no 
judgment  in  it.  Its  judgment  for  the  defendant  must,  consequently,  he  reversed,  and 
&  mandate  issued,  directing  the  suit  to  he  dismissed  fx>r  want  of  jurisdiction." — 
Opinion  of  the  Court. 


8  INTRODUCTORY  NOTE. 

zenship ;  after  which  it  would  seem  to  be  a  grave  judicial 
solecism  to  proceed  to  try  the  man  when  he  was  not  before  the 
Court,  and  when  he  could  take  nothing  from  its  decision  if  the 
merits  had  all  been  found  in  his  favor. 

These  remarks  are  made  without  reference  to  Scott,  or  to 
any  injury,  real  or  supposed,  which  might  concern  him:  they 
are  made  wholly  in  relation  to  the  two  great  political  questions 
which  I  handle,  and  to  show  that  the  Court  had  no  jurisdiction 
of  them — no  legal  way  to  get  at  them — no  foundation  to  stand 
upon  in  concatenating  that  chain  bridge  of  slender  links  on 
which  the  Court  crossed  from  Scott  and  his  family,  and  their 
claim  to  personal  freedom,  to  the  whole  people  of  the  United 
States,  and  their  political  government.  It  was  by  going  into  the 
merits  of  the  Scott  case,  that  the  Court  got  hold  of  the  Constitu 
tion  and  the  Missouri  Compromise  ;  and  I  think,  with  Mr.  Jus 
tice  Curtis,  in  his  dissenting  opinion,*  that  so  grave  an  inquiry, 
going  to  the  foundations  of  our  government,  ought  not  to  be  got 
hold  of  in  that  incidental,  subaltern,  and  contingent  way.  Even 
if  there  had  been  jurisdiction  in  the  Scott  case,  and  the  Court  had 
got  fairly  at  that  case,  I  cannot  consent  that  so  momentous  po 
litical  questions  should  have  been  hung  on  to  it,  and  tried  as 
""appendant,  and  been  saved,  or  condemned,  as  a  mere  conse 
quence  of  the  decision  of  the  question  of  personal  freedom  to 
Dred  Scott,  his  wife  and  children.  Such  parties  as  the  Congress 
and  the  people,  their  Constitution  and  its  administration,  are 
certainly  of  sufficient  dignity  to  have  a  trial  of  their  own,  and 
to  be  present  at  it  by  their  counsel.  Who  was  counsel  for  these 
parties  on  that  trial  of  Scott  and  his  family  ?  Nobody  !  for  the 

*  "  I  regret  I  must  go  further,  and  dissent  both  from  what  I  deem  their  assump 
tion  of  authority  to  examine  the  constitutionality  of  the  act  of  Congress  commonly 
called  the  Missouri  Compromise  Act,  and  the  grounds  and  conclusions  announced  in 
their  opinion. 

"  Having  first  decided  that  they  were  bound  to  consider  the  sufficiency  of  the  plea 
to  the  jurisdiction  of  the  Circuit  Court,  and  having  decided  that  this  plea  showed  that 
the  Circuit  Court  had  not  jurisdiction,  and  consequently  that  this  is  a  case  to  which 
the  judicial  power  of  the  United  States  does  not  extend,  they  have  gone  on  to  examine 
the  merits  of  the  case  as  they  appeared  on  the  trial  before  the  Court  and  jury,  on  the 
issues  joined  on  the  pleas  in  bar,  and  so  have  reached  the  question  of  the  power  of  Con 
gress  to  pass  the  act  of  1820.  On  so  grave  a  subject  as  this,  I  feel  obliged  to  say  that, 
in  my  opinion,  such  an  exertion  of  judicial  power  transcends  the  limits  of  the  authority 
of  the  Court,  as  described  by  its  repeated  decisions,  and,  as  I  understand,  acknowledged 
in  this  opinion  of  the  majority  of  the  Court." — Mr.  Justice  Curtis. 


INTRODUCTORY   NOTE.  9 

very  respectable  counsel  who  appeared  were   the  counsel  o£. 
Scott ;  and  their  business  was  to  save  Scott !  save  him  as  th£ . 
primary  object !  leaving  the  safety  of  the  other  parties  for  a 
secondary  object,  and  a  mere  resulting  consequence. 

What  makes  this  assumption  of  authority  the  more  regret- 
able,  is  the  perfect  immateriality  to  the  parties,  (Scott  and  his 
master,)  as  declared  by  the  Court,  of  the  consequences  of  termi 
nating  the  case,  either  by  dismission  for  want  of  jurisdiction,  or 
by  judgment  on  the  merits  for  the  defendant — both  modes  of 
terminating  it  being  about  the  same,  (as  declared  by  the  Court,)* 
in  its  consequences  to  each  party,  personally  and  pecuniarily. 
Now,  when  the  consequences  either  way  would  have  been  so 
immaterial  to  the  parties  to  the  suit — to  Scott  and  to  Sanford— 
why  take  the  course  which  has  been  so  serious  to  our  Constitu 
tion  ?  so  contrary  to  seventy  years'  action  of  our  government  ? 
so  inflammatory  to  political  parties  ?  and  so  aggravating  to  the 
spirit  of  sectional  division  ? 

But  there  is  another  view  to  be  taken  of  this  point — (the 
Court's  assumption  of  jurisdiction  over  the  Constitution  and  the 
compromise) — which  shows  that,  according  to  the  opinion  of 
the  Court  itself,  there  wras  no  necessity,  in  deciding  upon  the 
question  of  freedom  or  slavery  to  Scott  and  his  family,  to  decide 
upon  the  constitutionality  of  the  Missouri  Compromise  Act.  That 
view  of  the  case  is  this :  that  it  was  a  case  of  two  aspects, — 
one,  that  of  Scott  alone ;  the  other,  that  of  himself  and  family 
together;  in  fact,  two  different  cases,  in  one  of  which  Scott 
stood  alone,  and  in  the  other  he  and  his  family  stood  together. 
Thus,  before  he  had  a  family,  Scott  had  been  carried  by  his 
owner  from  Missouri  into  the  State  of  Illinois,  where  the  ordi 
nance  of  '87  against  slavery  was  admitted  by  the  Court  to  be  in 
full  force  ;  but  which  residence  in  a  free  State  gave  him  no 
freedom,  because  being  brought  back  to  the  State  of  Missouri, 
his  condition  depended  upon  the  laws  of  Missouri,  and  not  of 

*  "  It  is  true  that  the  result  either  way,  by  a  dismissal  or  by  a  judgment  for  the 
defendant,  makes  very  little,  if  any,  difference  in  a  pecuniary  or  personal  point  of  view 
to  either  party.  But  the  fact  that  the  result  would  be  very  nearly  the  same  to  the 
parties  in  either  form  of  judgment,  would  not  justify  this  Court  in  sanctioning  an  error 
in  the  judgment  which  is  patent  on  the  record,  and  which,  if  sanctioned,  might  be 
drawn  into  precedent,  and  lead  to  serious  mischief  and  injustice  in  some  future  suit." — 
Opinion  of  the  Court. 


10  INTRODUCTORY   NOTE. 

,  Illinois.'54'  Upon  the  same  principle,  Scott  and  his  whole  family 
having  been  taken  back  to  Missouri  from  the  north  side  of  the 
compromise  line,  would  have  their  free  or  servile  condition 
determined  by  the  laws  of  the  State  to  which  they  were  return 
ed,  and  not  by  those  of  the  Territory  in  which  they  had  sojourned. 
So  that,  free  soil  or  slave  soil  north  of  36°  30',  made  no  difference 
to  the  sojourning  slaves  brought  back.  And  in  this  part  of  the 
case  the  Court  says  :  "  As  Scott  was  a  slave  when  taken  into 
the  State  of  Illinois  by  his  owner,  and  was  there  held  as  such, 
and  brought  back  in  that  character,  his  status,  as  free  or  slave, 
depended  on  the  laws  of  Missouri,  not  of  Illinois."  So  that,  to 
the  decision  of  the  question  of  freedom  or  slavery  to  Scott  and 
his  family,  the  validity  or  immateriality  of  the  Missouri  Com 
promise  Act  was  wholly  immaterial,  and  entirely  unnecessary 
to  be  determined.  I  say  nothing  about  this  as  law  :  I  take  it  as 
I  find  it  in  the  pronounced  opinion  of  the  Supreme  Court ;  f 
and  so  taking  it  as  the  Court's  own  law,  I  must  be  allowed  to 

*  "  But  there  is  another  point  in  the  case  which  depends  on  the  State  power  and 
State  law.  And  it  is  contended,  on  the  part  of  the  plaintiff,  that  he  is  made  free  hy 
being  taken  to  Rock  Island,  in  the  State  of  Illinois,  independently  of  his  residence  in 
the  territory  of  the  United  States ;  and  being  so  made  free,  he  was  not  again  reduced 
to  a  state  of  slavery  by  being  brought  back  to  Missouri.  Our  notice  of  this  part  of  the 
case  will  be  very  brief;  for  the  principle  on  which  it  depends  was  decided  in  this  Court, 
upon  much  consideration,  in  the  caso  of  Strader  et  al.  v.  Graham,  reported  in  10th 
Howard,  82.  In  that  case,  the  slaves  had  been  taken  from  Kentucky  to  Ohio,  with 
the  consent  of  the  owner,  and  afterwards  brought  back  to  Kentucky.  And  this  Court 
held  that  their  status  or  condition,  as  free  or  slave,  depended  upon  the  laws  of  Ken 
tucky,  when  they  were  brought  back  into  that  State,  and  not  of  Ohio ;  and  that  this 
Court  had  no  jurisdiction  to  revise  the  judgment  of  a  State  court  upon  its  own  laws. 
This  was  the  point  directly  before  the  Court,  and  the  decision  that  this  Court  had  not 
jurisdiction  turned  upon  it,  as  will  be  seen  by  the  report  of  the  case.  As  Scott  was  a 
slave  when  taken  into  the  State  of  Illinois  by  his  owner,  and  was  there  held  as  such, 
and  brought  back  in  that  character,  his  status,  as  free  or  slave,  depended  on  the  laws 
of  Missouri,  and  not  of  Illinois." — Opinion  of  the  Court. 

\  For  my  opinion  of  the  law  I  am  willing  to  take  it  as  declared  by  Mr.  Chief  Justice 
Gamble,  of  the  Missouri  Supreme  Court,  in  a  long  course  of  decisions  at  times  when 
the  question  had  not  become  partisan,  political  and  geographical,  and  when  there  were 
no  new  lights  suddenly  breaking  out  to  throw  all  past  wisdom  in  the  shade.  But  to 
Judge  Gamble's  opinion : — "  I  regard  the  question  as  conclusively  settled  by  repeated 
adjudications  of  this  Court ;  and  if  I  doubted  or  denied  the  propriety  of  those  decisions, 
I  would  not  feel  myself  any  more  at  liberty  to  overturn  them,  than  I  would  any  other 
series  of  decisions  by  which  the  law  upon  any  other  question  had  been  settled.  There 
is  with  me  nothing  in  the  law  of  slavery  which  distinguishes  it  from  the  law  on  any 
other  subject,  or  allows  any  more  accommodation  to  the  temporary  excitements  which 


INTRODUCTORY   NOTE.  11 

believe  that,  in  no  possible  aspect  of  the  Scott  case,  even  in  a 
trial  on  the  merits,  and  with  clear  jurisdiction,  was  there  the 
least  necessity  to  judge  the  Compromise  Act  and  the  Constitu 
tion  :  consequently,  that  the  act  of  the  Court  in  judging  them 
was  unnecessary  and  extra-judicial.  So  that  the  decision  of  the 
Court  seems  to  be  open  to  the  preliminary  objections  of  assum 
ing  jurisdiction  where  it  had  none — hunting  for  errors  by  virtue 
of  a  rule  which  did  not  apply — making  a  bridge  to  get  from  a 
case  of  personal  rights  to  a  question  of  political  power — and  act 
ing,  without  necessity,  in  a  case  of  no  consequence  to  the  parties, 
on  a  different  case  dreadfully  momentous  to  the  public. 

This  is  the  exposition  of  the  first  great  error  of  the  Court,  as 
I  hold  it,  in  the  part  of  its  opinion  which  I  propose  to  examine : 
the  error  of  assuming  without  right,  and  without  necessity,  to 
decide  upon  the  constitutionality  of  the  Missouri  Compromise  ^ 
Act,  and  the  self-extension  of  the  Constitution  to  territories.  The 
second  great  error  is  in  the  decision  itself  upon  these  questions. 
I  propose  to  examine  these  decisions  ;  and  in  doing  so,  limit  my 
self,  as  the  Court  did,  to  the  strict  legal  inquiry  which  the  sub 
ject  exacts.  I  shall  not  go  beyond  this  limit — although  as  a 
political  subject  entirely  appropriate  to  do  so — to  inquire  into 
the  origin  and  design  of  the  course  of  measures  which  have  pro 
duced  the  present  disturbance  in  the  Union,  and  in  the  attempt 
to  compose  which  by  a  judicial  decision  the  Court  overrules  the 
action  of  two  generations,  virtually  inserts  a  new  clause  in  the 
Constitution,  changes  its  character,  and  makes  a  new  point  of 
departure  in  the  working  of  the  Federal  Government.  That 
task  belongs  to  history,  veracious  and  fearless,  and  will  require 
a  chapter  of  its  own  in  the  annals  of  our  Union. 

The  Court  sets  out  with  a  fundamental  mistake,  which  per 
vades  its  entire  opinion,  and  is  the   parent  of  its  portentous 

have  gathered  around  it.  *****  But  in  the  midst  of  all  such  excitement, 
it  is  proper  that  the  judicial  mind,  calm  and  self-balanced,  should  adhere  to  principles 
established  when  there  was  no  feeling  to  disturb  the  view  ot  the  legal  questions  upon 
which  the  rights  of  parties  depend.  In  this  State  it  has  been  recognized  from  the  be 
ginning  of  the  Government  as  a  correct  position  in  law,  that  the  master  who  takes  his 
slave  to  reside  in  a  State  or  Territory,  where  slavery  is  prohibited,  thereby  emancipates 
his  slave."  (Winney  »•  Whitesides,  1  Mo.  473 ;  Le  Grange  v.  Chouteau,  2  Mo.  20 ; 
Milley  v.  Smith,  Ib.  36 ;  Ralph  v.  Duncan,  3  Mo.  194  ;  Julia  v.  McKinney,  Ib.  270 ; 
Nat  v.  Ruddle,  Ib.  400 ;  Rachel  v.  Walker,  4  Mo.,  350 ,  Wilson  v.  Melvin,  592.)— Chief 
Justice  Gamble,  Missouri  Supreme  Court. 


12  INTRODUCTORY   NOTE. 

errors.  That  mistake  is  in  the  assumption,  that  the  Constitution 
extends  to  Territories  as  well  as  to  States,  and  includes  these  in 
fant  settlements  in  the  provisions  made  for  sovereign  States. 
Well  do  I  remember  the  day — -and  if  I  had  forgotten  it,  parlia 
mentary  history  would  preserve  its  memory — when  a  view  of 
that  doctrine  was  first  revealed*  to  the  astonished  vision  of  the 
American  Senate.  It  was  in  the  last  days  of  the  Session  1848- 
'49,  and  in  an  unparliamentary  attempt  to  hitch  on  to  the  Gen 
eral  Appropriation  Bill,  which  had  come  up  from  the  House,  the 
defeated  bills  (three  made  into  one)  for  giving  territorial  govern 
ments  to  California,  New  Mexico,  and  Utah.  These  territories 
had  remained  without  governments  for  nearly  two  years — all 
attempts  at  legislating  for  them  being  baffled,  first ,  by  the  move 
ment  of  Mr.  Wilmot  to  prohibit  the  introduction  of  slavery, 
(defeated  because  the  prohibition  was  already  complete  under 
the  Mexican  laws,) — and,  next,  by  the  movements  of  Mr.  Calhoun 
to  carry  slavery  there.  It  was  an  injury  to  these  territories,  a 
reproach  upon  our  Government,  and  a  humiliation  to  Congress, 
to  remain  in  this  state  of  impassibility  with  respect  to  the  gov 
ernment  of  the  new  acquisitions.  But  the  power  of  Congress 

"First  revealed:"  for  it  had  been  there  once  before,  without  a  revelation  of 
itself.  It  was  the  session  before,  in  one  of  the  many  abortive  bills  for  giving  govern 
ments  to  these  territories,  reported  from  a  committee  specially  appointed  for  the  pur 
pose,  composed  of  Mr.  Calhoun  and  a  majority  of  his  immediate  friends  and  sympa 
thizers  on  the  slavery  subject.  It  was  a  conglomerate  bill  which  lumped  all  the  terri 
tories  together — even  Oregon.  It  was  an  enormously  long  bill  of  three  dozen  ponder 
ous  sections,  the  penultimate  one  of  which,  namely,  the  35th,  was  in  these  words  : 
"  The  Constitution  and  the  laws  of  the  United  States  are  hereby  extended  over  and  de 
clared  to  be  in  full  force  in  said  territories  of  New  Mexico  and  California,  so  far  as  the 
same,  or  any  provision  thereof,  may  be  applicable." — This  comprehensive  section,  the 
only  short  one  in  the  bill,  but  so  new  and  startling,  was  relegated  to  its  fag-end,  where 
nothing  but  details  of  form  are  ever  found — details  to  carry  out  principles  contained 
in  the  front  sections,  and  upon  which  alone  the  bill  is  debated — and  seems  to  have 
escaped  all  notice  at  the  time.  No  speaker  mentioned  it,  and  there  were  many  able 
jurists  who  spoke  on  the  bill — among  others,  Mr.  Webster.  No  one  hinted  at  it — a  per 
suasive  evidence  that  no  one  knew  of  it  but  those  who  put  it  there,  and  who  had  the 
same  reason  for  not  referring  to  it  that  they  would  have  for  putting  it  where  it  would 
not  be  seen.  Mr.  Benton  voted  for  the  bill  without  knowing  such  a  provision  was  in 
it — nor  did  he  know  of  it  until  long  after. — This  bill  did  not  become  law,  and  has  passed 
into  the  receptacle  of  things  forgotten,  but  its  remembrance  may  be  of  some  value 
now  in  showing  that,  on  that  day,  (July  22d,  1848,)  the  authors  of  that  bill  deemed  an 
act  of  Congress  necessary  to  carry  the  Constitution  into  a  territory,  and  give  it  force 
therein  the  same  as  statutes  of  Congresss — and  so  classed  it  with  the  statutes  to  be 
extended. 


INTRODUCTORY   NOTE.  13 

was  paralyzed  by  the  pertinacity  of  two  extremes,  which,  oper 
ating  from  opposite  points,  and  with  mutual  crimination  of  each 
other,  worked  to  the  same  effect  in  baffling  Congress,  and  co 
operated  in  producing  the  same  results  while  denouncing  each 
other's  means — each  extreme  a  minority,  and  unable  to  do  any 
thing  of  itself,  but  potent  enough  in  conjoint  action  to  prevent 
Congress  from  doing  any  thing.  A  succession  of  bills  intro 
duced  during  three  Sessions  to  give  governments  to  these  orphan 
territories,  had  each  been  defeated ;  and  now  Congress  was  at 
the  end  of  its  Session,  and  at  the  end  of  the  Administration 
which  acquired  the  territories,  and  a  recess  of  nine  months  in 
view ;  and  the  same  abortive  result  to  the  territorial  bills.  In 
this  extreme  moment,  the  civil  and  diplomatic  bill,  commonly 
called  the  General  Appropriation  Bill — the  one  on  which  the 
life  of  the  Government  depended,  and  to  which  nothing  extra 
neous  could  be  added — came  up  from  the  House,  matured  by 
that  body,  and  only  waiting  the  action  of  the  Senate  upon  it. 
The  Senate  had  acted — had  made  the  appropriate  additions  ger 
mane  to  the  bill — had  finished  the  bill,  and  was  on  the  point  of 
returning  it  to  the  House,  when  Mr.  Isaac  P.  "Walker,  of  Wis 
consin,  moved  to  amend  it  by  adding  to  it  a  lumping  bill  for  the 
government  of  the  three  territories.  The  proposition  fixed  no 
attention,  and  seemed  to  excite  no  concern,  being  considered  un 
sustainable  011  a  question  of  order,  until  it  took  a  sudden  and 
sharp  turn  into  the  epidemic  slavery  question.  For,  it  seemed 
to  be  with  the  mind  in  those  days  as  it  was  with  the  body  in  the 
time  of  the  great  plague  in  Athens  during  the  "  Thirty  Years' 
"War,"  when  the  historian  Thucydides  says — That  whatever  dis 
ease  a  man  had  before,  or  might  take  during  the  time,  no  matter 
what,  it  immediately  ran  into  the  plague,  and  took  the  form  of 
that  pestilence,  entirely  losing  its  own  milder  character  in  the 
virulence  of  the  prevailing  distemper :  so,  in  the  mental  malady 
of  our  slavery  agitation,  all  questions  in  Congress  immediately 
ran  into  that  malady,  and  took  the  form  of  the  slavery  question. 
So  of  this  proposed  amendment  of  Mr.  Walker.  It  had  nothing 
to  do  with  slavery,  and  no  affinity  to  the  Appropriation  Bill ;  and, 
left  to  itself,  would  have  been  quickly  disposed  of — either  ruled 
out  as  disorderly,  or  rejected  as  objectionable.  But  its  nature 
was  wholly  altered  after  he  had  first  presented  it.  At  that  first 
presentation  it  contained  a  section,  as  does  every  territorial 


14:  INTRODUCTORY   NOTE. 

government  bill,  extending  certain  enumerated  acts  of  Congress 
to  the  territories — such  acts  as  Congress  thinks  proper  to  extend 
— no  act  of  Congress  obtaining  force  in  a  territory,  unless  ex 
pressly  spread  over  it.  Mr.  Walker's  bill  conformed  to  this 
practice.  It  contained  the  usual  list  of  acts  which  were  suitable 
to  territories  ;  for  the  list  is  nearly  always  the  same. 

Nothing  was  done  upon  this  proposition  the  day  it  was 
offered.  It  remained  unacted  upon  during  that  day.  The  next 
day  Mr.  Walker  asked  the  leave  of  the  Senate  to  modify  his 
amendment,  at  the  request  of  a  friend,  as  he  said.  Leave  was 
given,  and  the  modification  made  in  open  Senate,  and  consisted 
of  heading  the  list  of  the  enumerated  acts  of  Congress,  wTith  the 
Constitution :  so  as  to  make  the  list  read,  "  The  Constitution  of 
the  United  States,  and  all  and  singular  the  several  acts  of  Con 
gress  (describing  them)  be,  and  the  same  hereby,  are  extended  over 
and  given  full  force  and  efficacy  in  the  said  territories"  The 
novelty  and  strangeness  of  this  proposition  called  up  Mr.  Web 
ster,  who  repulsed  as  an  absurdity,  and  as  an  impossibility,  the 
scheme  of  extending  the  Constitution  to  territories — declaring 
that  instrument  to  have  been  made  for  States,  not  territories — 
that  Congress  governed  the  territories  independently  of  the  Con 
stitution,  and  incompatibly  with  it — that  no  part  of  it  went  to  a 
territory  but  what  Congress  chose  to  send — that  it  could  not  act 
of  itself  anywhere,  not  even  in  the  States  for  which  it  was 
made  :  and  that  it  required  an  act  of  Congress  to  put  it  into 
operation  before  it  had  effect  anywhere.*  This  was  clear  con 
stitutional  law,  shown  in  the  preamble  to  the  Constitution,  and 
in  every  word  of  it,  that  it  was  made  for  States — so  understood 

*  But  this  is  a  case  in  which  Mr.  Webster  should  have  his  own  words — at  least  a 
few  of  them  ;  and  here  they  are  :  "  Let  me  say,  that  in  this  general  sense  there  is  no 
such  thing  as  extending  the  Constitution.  The  Constitution  is  extended  over  the 
United  States,  and  nothing  else.  It  cannot  he  extended  over  any  thing,  except  the  old 
States  and  the  new  States  that  shall  come  in  hereafter,  when  they  do  come  in.  There 
is  a  want  of  accuracy  of  ideas  in  this  respect  that  is  quite  remarkable,  among  eminent 
gentlemen,  and  especially  professional  and  judicial  gentlemen  *  It  seems  to  be  taken 
for  granted  that  the  right  of  trial  by  jury,  the  habeas  corpus,  and  every  principle 
designed  to  protect  personal  liberty,  is  extended  by  force  of  the  Constitution  itself  over 
every  new  Territory.  That  proposition  cannot  be  maintained  at  all.  How  do  you 
arrive  at  it  by  any  reasoning  or  deduction  ?  It  can  only  be  arrived  at  by  the  loosest 
of  all  possible  constructions.  It  is  said  that  this  must  be  so,  else  the  right  of  habeas 

*  Stick  a  pin  here.  Mr.  Webster  points  out  lawyers  and  judges  as  being  specially 
befogged  on  this  point.  Nothing  but  a  sense  of  painful  duty  could  have  carried  Mr.  W. 
out  of  his  way  to  make  such  a  remark  of  a  profession  of  which  he  was  himself  the  highest 
ornament,  and  of  the  ermine  which  he  so  much  reverenced. 


INTRODUCTORY   NOTE.  15 

in  the  legislation  of  seventy  years — every  part  of  it  requiring  a 
specific  law  to  execute  it  before  it  could  be  enforced.  Even  the 
oath  commanded  by  the  Constitution  could  not  be  taken  until 
an  act  of  Congress  was  passed  to  prescribe  the  mode,  and  that 
act  was  !N"o.  1  of  the  acts  of  the  first  Congress,  and  required  the 
members  who  made  it,  (and  who  had  been  sworn  in  by  a  volun 
tary  resolution  for  the  purpose  of  making  it,)  to  be  sworn  in  un 
der  it  immediately ;  and  all  other  officers  as  soon  as  appointed. 
So  of  every  other  clause  of  the  Constitution,  no  matter  how 
plain  or  peremptory  the  provision.  Nothing  could  be  done  un 
der  it  without  a  law,  as  in  the  case  of  fugitives  from  service  or 

corpus  would  be  lost.  Undoubtedly,  these  rights  must  be  conferred  by  law  before  they 
can  be  enjoyed  in  a  Territory." — Webster,  March  3d,  1849. 

To  the  same  effect  Mr.  Clay,  when  he  first  heard  of  this  new  doctrine,  which  was 
near  the  end  of  his  natural  as  well  of  his  parliamentary  life  : 

"  Now,  really,  I  must  say  that  the  idea  that  eo  instanti  upon  the  consummation  of 
the  treaty,  the  Constitution  of  the  United  States  spread  itself  over  the  acquired  territory, 
and  carried  along  with  it  the  institution  of  slavery,  is  so  irreconcilable  with  any  com 
prehension,  or  any  reason  that  I  possess,  that  I  hardly  know  how  to  meet  it.  Why, 
sir,  these  United  States  consist  of  thirty  States.  In  fifteen  of  them  there  is  slavery  : 
in  fifteen  slavery  does  not  exist.  How  can  it  be  argued  that  the  fifteen  slave  States, 
by  the  operation  of  the  Constitution  of  the  United  States,  carried  into  the  ceded  country 
their  institution  of  slavery,  any  more  than  it  can  be  argued  upon  the  other  side,  that 
by  the  operation  of  the  same  Constitution  the  fifteen  free  States  carried  into  the  ceded 
Territories  the  principle  of  freedom,  which  they,  from  views  of  public  policy,  have 
chosen  to  adopt  within  their  limits  ?  Let  me  suppose  a  case.  Let  me  imagine  that 
Mexico  had  never  abolished  slavery  there  at  all.  Let  me  suppose  that  it  was  existing 
there,  by  virtue  of  law,  from  the  shores  of  the  Pacific  to  those  of  the  Gulf  of  Mexico, 
at  the  moment  of  the  cession  of  those  countries  to  us  by  the  treaty  in  question. 
With  what  patience  would  gentlemen,  coming  from  the  slaveholding  States,  listen  to 
an  argument  which  should  be  urged  by  the  free  States,  that,  notwithstanding  the  exist 
ence  of  slavery  within  these  territories,  the  Constitution  of  the  United  States,  the  mo 
ment  it  operated  upon  and  took  effect  within  the  ceded  Territories,  abolished  slavery 
and  rendered  them  free  ?  Well,  is  there  not  just  as  much  ground  to  contend,  where 
a  moiety  of  the  States  are  free,  and  the  other  moiety  are  slaveholding  States,  that 
the  principle  of  freedom  which  prevails  in  the  one  class  shall  operate,  as  the  prin 
ciple  of  slavery,  which  operates  in  the  other  class  of  States,  shall  operate  ?  Can  you, 
amidst  this  conflict  of  interests,  of  principles,  and  of  legislation  which  prevails  in 
the  two  parts  of  the  Union — can  you  come  to  any  other  conclusion  than  that  which  I 
understand  to  be  the  conclusion  of  the  public  law  of  the  world,  of  reason,  and  of  jus 
tice,  that  the  status  of  law,  as  it  existed  at  the  moment  of  the  conquest,  or  acquisition, 
remains  unchanged,  until  it  is  altered  by  the  sovereign  authority  of  the  conquering  or 
acquiring  power  ?  The  laws  of  Mexico,  as  they  existed  at  the  moment  of  the  cession 
of  the  ceded  territories  to  this  country,  remained  their  laws  still,  unless  they  were 
altered  by  that  new  sovereign  power  under  which  this  people  and  these  territories 
came,  in  consequence  of  the  treaty  of  cession,  to  the  United  States. — Mr.  Clay  on  Com 
promise  Measures  ^  1850. 


16  INTRODUCTORY   NOTE. 

justice :  none  of  whom  conld  be  delivered  up  except  in  pursu 
ance  to  a  law  made  to  carry  the  clause  into  effect.  Knowing 
the  impossibility  of  self-action  on  the  part  of  the  Constitution — 
a  mere  declaration  of  principles  without  vitality  until  germi 
nated  by  law — Mr.  Webster  scouted  as  an  impossible  absurdity, 
the  extension  of  the  Constitution  to  territories.  Mr.  Calhoun 
replied,  and  immediately  became  the  prominent  speaker  on  the 
extension  side — contending  that  the  Constitution  could  be  so 
extended,  and,  being  the  supreme  law  of  the  land,  would  carry 
along  with  it  protection  to  persons  and  property,  to  wit,  the 
owner  and  his  slaves  ;  and  would  override  and  control  all  laws 
opposed  to  that  protection.  The  debate  then  took  the  regular 
slavery  form,  and  developed  this  new  question  which  had  been 
feeling  its  way  in  some  remarks,  but  never  before  took  the 
shape  of  a  formal  proposition  to  be  enacted  into  law — that  of 
extending  slavery  into  the  new  territories.  Mr.  Calhoun  boldly 
avowed  his  intent  to  carry  slavery  into  them  under  the  wing  of 
the  Constitution,  and  denounced  as  enemies  to  the  South  all  who 
opposed  it.  Mr.  Webster  rejoined,  going  into  an  extended  ar 
gument  in  support  of  his  positions.  Several  senators  joined  in 
it,  and  the  whole  debate  may  be  seen  in  the  Appendix  to  the 
Congress  Debates  of  the  day.  A  brief  notice  of  it,  with  parts 
of  Mr.  Webster's  and  Mr.  Calhoun's  speeches,  may  be  seen  in 
the  Thirty  Years'  Yiew,  (vol.  2,  ch.  182,)  and  also  in -the  Appen 
dix  to  this  Examination  of  the  Court's  Opinion. 

The  amendment  was  carried,  the  whole  Territorial  Bill  of 
Mr.  Walker,  as  modified  at  the  instance  of  a  friend  ;  and  being 
returned  to  the  House  for  its  concurrence,  the  amendment  was 
rejected,  and  a  contest  was  brought  on  between  the  two  Houses, 
which  threatened  the  loss  of  the  General  Appropriation  Bill, 
and  the  consequent  stoppage  of  the  government  for  the  want  of 
the  means  of  keeping  it  alive.  It  was  after  midnight,  and  the 
last  night  not  only  of  the  session  but  of  the  Congress,  and  of  the 
presidential  term  ;  and  when  many  Senators  had  retired,  or  re 
fused  to  vote,  believing  their  power  was  at  an  end.  Mr.  Polk, 
who,  according  to  the  custom  of  the  presidents,  had  remained 
in  the  capitol  until  midnight  to  sign  bills,  had  left  it  and  gone 
home ;  the  House  had  ceased  to  do  business,  was  without  a 
quorum,  and  had  sent  to  the  Senate  the  customary  adjournment 
One-third  of  the  Senate  was  absent,  or  refusing  to 


INTRODUCTORY  NOTE.  17 

vote,  Mr.  Cass  and  Mr.  Benton  among  the  latter.  The  motion 
was  made  to  adjourn  sine  die,  which,  under  the  imminent  cir 
cumstances  of  the  occasion,  the  presiding  officer  refused  to  put. 
It  was  after  four  o'clock  in  the  morning  of  the  4th  of  March 
when  this  contest  was  brought  to  an  end  by  the  recession  of  the 
Senate — by  the  Senate  receding  from  its  amendment — and  the 
General  Appropriation  Bill  (the  life  of  the  government)  per 
mitted  to  pass.*  It  was  passed  on  the  morning  of  the  4th  of  March, 
and  signed  by  the  President  on  that  day,  but  antedated  of  the 
third  to  prevent  the  invalidity  from  appearing  on  its  face.  Such 
were  the  portentous  circumstances  under  which  this  new  doc 
trine  first  revealed  itself  in  the  American  Senate !  and  then  as 
needing  a  legislative  sanction,  as  requiring  an  act  of  Congress  to 
carry  the  Constitution  into  the  territories,  and  to  give  it  force 
and  efficacy  there.  Failing  in  that  attempt,  the  higher  ground 
was  afterwards  taken,  that  the  Constitution  went  of  itself,  and 
enforced  itself  in  these  territories,  so  far  as  slavery  is  concerned  : 
and  this,  I  apprehend,  is  what  the  Supreme  Court  has  decided. 
This  being  the  decision  of  the  Court,  it  becomes  proper  to 
give  it  in  their  own  words,  thus  : 

"  This  Territory  being  a  part  of  the  United  States,  the  Government 
and  the  citizen  both  enter  it  under  the  authority  of  the  Constitution,  with 
their  respective  rights  defined  and  marked  out ;  and  the  Federal  Gov 
ernment  can  exercise  no  power  over  his  person  or  property,  beyond  what 
that  instrument  confers,  nor  lawfully  deny  any  right  wlii^h  it  has  re 
served. 

"  It  seems,  however,  to  be  supposed,  that  there  is  a  difference  be 
tween  property  in  a  slave  and  other  property,  and  that  different  rules 
may  be  applied  to  it  in  expounding  the  Constitution  of  the  United 
States.  And  the  laws  and  usages  of  nations,  and  the  writings  of  emi 
nent  jurists  upon  the  relation  of  master  and  slave  and  their  mutual 
rights  and  duties,  and  the  powers  which  Governments  may  exercise  over 
it,  have  been  dwelt  upon  in  the  argument. 

"  Now,  as  we  have  already  said  in  an  earlier  part  of  this  opinion, 
upon  a  different  point,  the  right  of  property  in  a  slave  is  distinctly  and 
expressly  affirmed  in  the  Constitution.  The  right  to  traffic  in  it,  like 

*  Only  seven  Senators  voted  against  receding,  Mr.  Calhoun  himself  not  voting  in 
this  last  struggle — for  what  reason  not  stated.  It  is  due  to  Mr.  Webster  to  say,  that 
his  skill  and  perseverance  passed  this  hill,  and  prevented  the  Government  from  heing 
stopped  until  a  new  Congress  could  he  assemhled,  of  which  a  considerable  number  of 
members  were  yet  to  be  elected. 

2 


18  INTRODUCTORY   NOTE. 

an  ordinary  article  of  merchandise  and  property,  was  guaranteed  to  the 
citizens  of  the  United  States,  in  every  state  that  might  desire  it,  for 
twenty  years.  And  the  Government  in  express  terms  is  pledged  to 
protect  it  in  all  future  time,  if  the  slave  escapes  from  his  owner.  This 
is  done  in  plain  words — too  plain  to  be  misunderstood.  And  no  word 
can  be  found  in  the  Constitution  which  gives  Congress  a  greater  power 
over  slave  property,  or  which  entitles  property  of  that  kind  to  less  pro 
tection  than  property  of  any  other  description.  The  only  power  con 
ferred  is  the  power  coupled  with  the  duty  of  guarding  and  protecting 
the  owner  in  his  rights. 

"  Upon  these  considerations,  it  is  the  opinion  of  the  Court,  that  the 
act  of  Congress  which  prohibited  a  citizen  from  holding  and  owning 
property  of  this  kind  in  the  Territory  of  the  United'  States  north  of  the 
line  therein  mentioned,  is  not  warranted  by  the  Constitution,  and  is 
therefore  void;  and  that  neither  Dred  Scott  himself,  nor  any  of  his 
family,  were  made  free  by  being  carried  into  this  Territory ;  even  if  they 
had  been  carried  there  by  the  owner,  with  the  intention  of  becoming  a 
permanent  resident."  * 

*  This  opinion  of  the  Court,  and  the  reasons  given  for  it,  correspond  with  the  fol 
lowing  resolutions  submitted  by  Mr.  Calhoun  in  the  Senate  (February,  1847) : 

"  Resolved^  That  the  Territories  of  the  United  States  belong  to  the  several  States 
composing  this  Union,  and  are  held  by  them  as  their  joint  and  common  property. 

"  Resolved,  That  Congress,  as  the  joint  agent  and  representative  of  the  States  of  the 
Union,  has  no  right  to  make  any  law  or  do  any  act  whatever  that  shall  directly,  or  by 
its  effects,  make  any  discrimination  between  the  States  of  this  Union,  by  which  any  one 
of  them  shall  be  deprived  of  its  full  and  equal  rights  in  any  Territory  of  the  United 
States  acquired  or  to  be  acquired. 

"  Resolved,  That  the  enactment  of  any  law  which  should  directly,  or  by  its  effects, 
deprive  the  citizens  of  any  of  the  States  of  this  Union  from  emigrating,  with  their 
property,  into  any  of  the  Territories  of  the  United  States,  would  make  such  a  discrimi 
nation  ;  and  would,  therefore,  be  a  violation  of  the  Constitution,  and  the  rights  of  the 
States  from  which  such  citizens  emigrated,  and  in  derogation  of  that  perfect  equality 
which  belongs  to  them  as  members  of  this  Union,  and  would  tend  directly  to  subvert 
the  Union  itself." 

These  resolutions  were  in  response  to  the  Wilmot  proviso ;  and  the  sincerity  of  their 
author  in  offering  them  has  been  since  shown,  in  a  confidential  letter  which  has  come 
to  light,  in  which  this  proviso,  thus  presented  to  the  Senate  to  be  adopted  as  adequate 
cause  for  dissolving  the  Union,  was  considered  by  Mr.  Calhoun  as  a  God-send,  abso 
lutely  necessary,  or  something  like  it,  to  keep  up  the  slavery  agitation  in  the  South  ; 
and,  of  which  any  compromise,  adjustment,  or  even  its  defeat,  would  be  unfortunate  for 
the  South.—  See  Appendix  II. — These  resolutions  were  never  brought  to  a  vote  in  the 
Senate.  They  were  denounced  upon  the  spot  as  a  "fire-brand"  and  suffered  to  die  out 
there,  but  sent  to  the  slave  States  for  adoption;  by  a  few  of  which  (Virginia,  South 
Carolina,  Florida,  and  Missouri)  they  were  legislatively  adopted,  and  became  the  basis 
of  new  party  organization. 


INTRODUCTORY   NOTE.  19 

It  is  believed  that  these  positions  are  based  upon  errors  of 
fact,  which  being  corrected,  the  erroneous  deductions  fall  of 
themselves.  The  prohibition  of  slavery  in  a  Territory  is  assumed 
to  work  an  inequality  in  the  States,  allowing  one  part  to  carry 
its  property  with  it — the  other,  not.  This  is  a  mistake — a  great 
error  of  fact — the  source  of  great  errors  of  deduction.  The 
citizens  of  all  the  States,  free  and  slave,  are  precisely  equal  in 
their  capacity  to  carry  their  property  with  them  into  Territories. 
Each  may  carry  whatever  is  property  by  the  laws  of  nature: 
neither  can  carry  that  which  is  only  property  by  statute  law : 
anoT  the  reason  is,  because  he  cannot  carry  w^ith  him  the  law 
which  makes  it  property.  Either  may  carry  the  thing  which  is 
the  subject  of  this  local  property,  but  neither  can  carry  the  law 
which  makes  it  so.  The  Virginian  may  carry  his  man  slave ; 
but  he  cannot  carry  the  Virginian  law  which  makes  him  a  slave- 
The  citizen  of  Massachusetts  may  carry  the  pile  of  money  which, 
under  a  State  law,  constitutes  a  bank ;  but  he  cannot  carry  the 
law  or  charter  which  makes  it  a  bank :  and  his  treasure  is  only 
a  pile  of  money ;  and,  besides  being  impossible,  it  would  be  ab 
surd,  and  confusion  confounded  to  be  otherwise.  For,  if  the 
citizen  of  one  State  might  carry  his  slave  State  law  with  him  into 
a  Territory,  the  citizens  of  every  other  slave  State  might  do  the 
same ;  and  then  what  Babylonish  confusion,  not  merely  of  tongues, 
but  of  laws,  would  be  found  there !  Fifteen  different  codes,  as 
the  slave  States  now  number,  and  more  to  come.  For  every 
slave  State  has  a  servile  code  of  its  own,  differing  from  others  in 
some  respects — and,  in  some,  radically :  as  much  so  as  land,  in 
the  eye  of  the  law,  differs  from  cattle.  Thus,  in  some  States,  as 
in  Virginia,  and  others,  slaves  are  only  chattels :  in  others,  as  in 
Kentucky  and  Louisiana,  they  are  real  estate.  How  would  all 
these  codes  work  together  in  a  Territory  under  the  wing  of  the 
Constitution,  protecting  all  equally  ?  no  law  of  Congress  there,  or 
of  the  Territory,  to  reconcile  and  harmonize  them  by  forming 
them  into  one ;  no  law  to  put  the  protecting  power  of  the  Con 
stitution  into  action ;  but  of  itself,  by  its  own  proper  vigor,  it 
is  to  give  general  and  equal  protection  to  all  slaveholders  in  the 
enjoyment  of  their  property — each,  according  to  the  law  of  the 
State  from  which  he  came.  For,  there  being  no  power  in  Con 
gress,  or  the  Territorial  Legislature,  to  legislate  upon  slavery, 
the  whole  subject  is  left  to  the  Constitution  and  the  State  law ! 


20  INTRODUCTOKY   NOTE. 

that  law  which  cannot  cross  the  State  line !  and  that  Constitution 
which  gives  protection  to  slave  property  but  in  one  instance, 
and  that  only  in  States,  not  in  Territories — the  single  instance  of 
recovering  runaways.  The  Constitution  protect  slave  property 
in  a  Territory !  when  by  that  instrument  a  runaway  from  the 
Territory  or  into  the  Territory,  cannot  be  reclaimed.  Beautiful 
Constitutional  protection  that !  only  one  clause  under  it  to  pro 
tect  slave  property,  and  that  limited,  in  express  words,  to  fugi 
tives  between  State  and  State !  and  but  one  clause  in  it  to  pro 
tect  the  master  against  his  slaves,  and  that  limited  to  States ! 
and  but  one  clause  in  it  to  tax  slaves  as  property,  and  that 
limited  to  States  !  and  but  one  clause  in  it  to  give  a  qualified 
representation  to  Congress,  and  that  limited  to  States.  ~No  ;  the 
thing  is  impossible.  The  owner  cannot  carry  his  slave  State 
law  with  him  into  the  Territory ;  nor  can  he  carry  it  into  another 
slave  State,  but  must  take  the  law  which  he  finds  there,  and  have 
his  property  governed  by  it ;  and,  in  some  instances,  wholly 
changed  by  it,  and  rights  lost,  or  acquired  by  the  change.  For 
instance,  in  Virginia  slaves  are  a  chattel  interest,  and  belong  to 
the  husband,  though  come  by  the  wife,  and  may  be  seized  and 
sold  for  his  debts — even  those  contracted  before  marriage ;  or 
he  may  give  them  away,  or  devise  them  to  his  own  kin,  or  chil 
dren  by  another  marriage.  Eemoved  to  Kentucky  with  these 
slaves,  they  become  real  estate,  and  belong  to  the  wife,  and  her 
blood ;  and  the  husband  has  no  more  rights  in  them  than  in  her 
land.  If  he  removed  again  and  got  into  Tennessee  with  his 
slaves,  they  return  to  their  chattel  condition ;  and  go  as  they 
would  in  Virginia.  And  if  he  passed  on  as  far  as  Louisiana, 
another  metamorphosis  of  his  property  !  for  there  they  become 
real  estate  again,  governed  by  its  laws — and  also  become  sub 
ject  (the  husband's  own,  if  he  has  or  acquires  any)  to  the  civil 
law  partnership  between  husband  and  wife.  So  that  the  doc 
trine  of  the  Supreme  Court  will  not  do — neither  in  States  nor 
Territories :  for  the  owners  can  in  no  case  carry  their  slave  law 
beyond  the  limits  of  their  own  State.* 

*  This  obvious  view  did  not  escape  Mr.  Webster  when  this  novel  doctrine  was  first 
broached  in  the  Senate,  in  1818,  (on  an  Oregon  Territorial  Bill,)  nor  the  dissenting 
justices  in  the  Dred  Scott  case.  Mr.  Webster,  with  a  few  remarks,  exposed  the  fallacy 
of  the  objection— thus  :  "  The  southern  Senators  say  we  deprive  them  of  the  right  to 
go  into  these  newly  acquired  Territories  with  their  property.  We  certainly  do  not 


INTRODUCTORY   NOTE.  21 

In  its  terms  the  opinion  of  the  Supreme  Court  stops  at  the 
invalidation  of  an  act  of  Congress  which  shall  prohibit  slavery 
in  a  Territory :  upon  its  principle  and  reasons  it  should  invali 
date  any  other  act  having  the  same  effect — whether  it  be  the 

prevent  them  from  going  into  those  Territories  with  what  is,  in  general  law,  called 
property.  But  these  States  have  by  their  local  laws  created  a  property  in  persons,  and 
they  cannot  carry  these  local  laws  with  them.  Slavery  is  created,  and  exists  by  a 
local  law,  which  is  limited  to  a  certain  section  ;  and  it  is  asked  that  Congress  shall 
establish  a  local  law  in  other  Territories  to  enable  southern  Senators  to  carry  their  par 
ticular  law  with  them.  No  man  can  be  held  as  a  slave  unless  the  local  law  accompany 
him." 

And  thus  Mr.  Justice  M'Lean  : — "Will  it  be  said  that  the  slave  is  taken  as  prop 
erty,  the  same  as  other  property  which  the  master  may  own  ?  To  this  I  answer,  that 
colored  persons  are  made  property  by  the  law  of  the  State,  and  no  such  power  has 
been  given  to  Congress.  Does  the  master  carry  with  him  the  law  of  the  State  from 
which  he  removes  into  the  Territory  ?  and  does  that  enable  him  to  coerce  his  slave  in 
the  Territory  ?  Let  us  test  this  theory.  If  this  may  be  done  by  a  master  from  one 
slave  State,  it  may  be  done  by  a  master  from  every  other  slave  State.  This  right  is 
supposed  to  be  connected  with  the  person  of  the  master,  by  virtue  of  the  local  law. 
Is  it  transferable  ?  May  it  be  negotiated,  as  a  promissory  note  or  bill  of  exchange  ? 
If  it  be  assigned  to  a  man  from  a  free  State,  may  he  coerce  the  slave  by  virtue  of  it  ? 
What  shall  this  thing  be  denominated  ?  Is  it  personal  or  real  property  ?  Or  is  it  an 
indefinable  fragment  of  sovereignty,  which  every  person  carries  with  him  from  his  late 
domicil  ?  One  thing  is  certain,  that  its  origin  has  been  very  recent,  and  it  is  un 
known  to  the  laws  of  any  civilized  country.  It  is  said  the  Territories  are  common 
property  of  the  States,  and  that  every  man  has  a  right  to  go  there  with  his  property. 
This  is  not  controverted.  But  the  Court  say,  a  slave  is  not  property  beyond  the  opera 
tion  of  the  local  law  which  makes  him  such.  Never  was  a  truth  more  authoritatively 
and  justly  uttered  by  man.  Suppose  a  master  of  a  slave  in  a  British  island  owned  a 
million  of  property  in  England ;  would  that  authorize  him  to  take  his  slaves  with  him 
to  England  ?  The  Constitution,  in  express  terms,  recognizes  the  status  of  slavery  as 
founded  on  the  municipal  law :  '  No  person  held  to  service  or  labor  in  one  State,  under 
tlw  laws  thereof,  escaping  into  another,  shaijj,'  &c.  Now,  unless  the  fugitive  escape 
from  a  place  where,  by  the  municipal  law,  he  is  held  to  labor,  this  provision  affords  no 
remedy  to  the  master.  What  can  be  more  conclusive  than  this  ?  Suppose  a  slave 
escape  from  a  Territory  where  slavery  is  not  authorized  by  law,  can  he  be  reclaimed  ? 
In  this  case,  a  majority  of  the  Court  have  said  that  a  slave  may  be  taken  by  his 
master  into  a  Territory  of  the  United  States,  the  same  as  a  horse,  or  any  other  kind 
of  property.  It  is  true,  this  was  said  by  the  Court,  as  also  many  other  things,  which 
are  of  no  authority." 

And  thus  Mr.  Justice  Curtis : — "  Is  it  conceivable  that  the  Constitution  has  con 
ferred  the  right  on  every  citizen  to  become  a  resident  on  the  Territory  of  the  United 
States  with  his  slaves,  and  there  to  hold  them  as  such,  but  has  neither  made  nor  pro 
vided  for  any  municipal  regulations  which  are  essential  to  the  existence  of  slavery  ? 
Is  it  not  more  rational  to  conclude  that  they  who  framed  and  adopted  the  Constitution, 
were  aware  that  persons  held  to  service  under  the  laws  of  a  State  are  property  only  to 
the  extent  and  under  the  conditions  fixed  by  those  laws ;  that  they  must  cease  to  be 
available  as  property,  when  their  owners  voluntarily  place  them  permanently  within 


22 


INTRODUCTORY   NOTE. 


constitution,  or  law,  of  a  State  coming  into  existence  in  the  same 
Territory,  and  taking  its  place.  The  principle  is,  that  the  con 
stitution  carrying  slavery  into  the  territory,  the  holding  slaves 
there  is  a  constitutional  right  which  cannot  be  defeated  by  an 
act  of  Congress.  !N"ow,  that  being  the  case,  can  any  other  au 
thority  defeat  it  ?  Can  a  State  do  it  ?  Can  one  State  do  by  it 
self  what  all  the  States  together  in  Congress  cannot  do  ?  The 
inequality,  degradation,  insult  and  injury  of  being  debarred  from 
an  equal  use  of  a  common  property,  is  the  gravamen  of  the 
complaint:  now  this  degradation,  insult,  injury,  and  inequality, 
would  be  precisely  the  same  if  done  by  a  State  law,  or  a  State 
constitution,  as  if  done  by  an  act  of  Congress.  The  damage 
would  be  the  same,  and  the  insult  greater,  because  done  by  a 
single  State,  and  a  young  one  fresh  from  the  territorial  condition, 
and  setting  at  defiance  the  rights  of  all  the  old  slave  States  to 
which  it  might  owe  its  existence.  The  case  would  cry  equally 
for  the  interposition  of  the  Supreme  Court,  and  it  would  be  a 
case  in  which  the  court  would  have  a  clear  right  to  interpose. 
For  the  Constitution  of  the  United  States  is  supreme  over  State 
constitutions,  State  laws,  and  State  judiciaries.  It  overrides 
them  all  wherever  it  goes  ;  *  and  going  into  the  new  State  with 
the  same  right  and  duty  to  protect  persons  and  property  in  the 
enjoyment  of  a  common  right  with  which  it  had  entered  the  ter 
ritory,  the  same  remedy  would  require  to  be  given  for  the  same 
wrong.  And  there  would  be  no  taking  position  upon  State 
rights  ;  for  no  State  has  any  right  to  do  any  thing  contrary  to  the 
Constitution.  The  argument  of  the  Court  proves  too  much ; 

another  jurisdiction,  where  no  municipal  laws  on  the  subject  of  slavery  exist  ?  more 
over,  if  the  right  exists,  what  are  its  limits,  and  what  are  its  conditions  ?  If  citizens 
of  the  United  States  have  the  right  to  take  their  slaves  to  a  Territory,  and  hold  them 
there  as  slaves,  without  regard  to  the  laws  of  the  Territory,  I  suppose  this  right  is  not 
to  be  restricted  to  the  citizens  of  slaveholding  States.  A  citizen  of  a  State  which  does 
not  tolerate  slavery  can  hardly  be  denied  the  power  of  doing  the  same  thing.  And 
what  law  of  slavery  does  either  take  with  him  to  the  Territory  ?  If  it  be  said  to  be 
those  laws  respecting  slavery  which  existed  in  the  particular  State  from  which  each 
slave  last  came,  what  an  anomaly  is  this?  Where  else  can  we  find,  under  the 
law  of  any  civilized  country,  the  power  to  introduce  and  permanently  continue  diverse 
systems  of  foreign  municipal  law,  for  holding  persons  in  slavery?" 

*  This  Constitution,  and  the  laws  of  the  United  States  which  shall  be  made  in  pur 
suance  thereof,  and  all  treaties  made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land  ;  and  the  judges  in  every 
State  shall  be  bound  thereby,  any  thing  in  the  constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding.  [Cons.,  Art.  G.] 


INTRODUCTORY   NOTE.  23 

and,  pushed  to  its  legitimate  conclusions,  would  invalidate  State 
constitutions  and  laws  as  readily  as  it  does  acts  of  Congress, 
there  being  no  difference  in  the  right  to  go  and  to  stay  in  the 
State  as  well  as  the  Territory,  as  long  as  there  remained  in  it 
any  soil  acquired  by  the  common  blood,  and  the  common  treas 
ure  of  the  whole. 

But  there  is  practice  as  well  as  argument  on  this  doctrine  of 
carrying  slaves  into  territories,  and  having  them  protected  there 
by  the  Constitution.  We  have  had  some  slave  territories — Mis 
souri,  Arkansas,  Florida, — into  which  that  property  was  carried. 
Was  it  done  under  the  Constitution  ?  ]STo  !  But  under  the  ter 
ritorial  law,  sanctioned,  not  by  the  Constitution,  but  by  Congress, 
and  governed  after  it  got  there  by  the  territorial  law.  ~No  one 
carried  the  State  law  with  him.  He  left  that  behind,  and  took 
what  he  found  in  the  Territory ;  and  if  he  had  found  no  law 
there,  the  slaves  would  have  been  free,  maugre  the  Constitution, 
which,  extended  over  territories  without  laws  to  apply  it,  would 
be  a  cloud  without  rain,  as  even  in  the  States  for  which  it  was 
made,  and  in  which  it  recognizes  slavery  and  the  rights  of  the 
owner.  JSTo  right  can  be  exercised  under  it,  not  even  reclaiming 
a  fugitive  from  service,  without  an  act  of  Congress. 

I  only  occupy  myself  with  the  -political  part  of  the  Court's 
opinion — that  part  of  it  which  is  intended  to  act  on  the  power  of 
Congress ;  and  to  set  forth  this  part  in  its  clearest  light,  and  to 
separate  it  from  the  personal  part  which  acts  on  the  freedom  of 
Scott  and  his  family.  T  here  present  these  political  decisions, 
(as  I  deem  them  to  be,)  from  the  official  report  of  the  case,  as  I 
find  them  condensed  in  the  Reporter's  synoptical  view,  prefixed 
to  the  report.  That  synopsis  classes  the  different  branches  of 
the  decision  under  five  divisions,  of  which  only  two — the  third 
and  the  fourth — claim  my  attention.  They  are  as  follow  : 

III. 

"  The  clause  in  the  Constitution  authorizing  Congress  to  make  all 
needful  rules  and  regulations  for  the  government  of  the  territory  and 
other  property  of  the  United  States,  applies  only  to  territory  within  the 
chartered  limits  of  some  one  of  the  States  when  they  were  colonies  of 
Great  Britain,  and  which  was  surrendered  by  the  British  Government 
to  the  old  Confederation  of  the  States,  in  the  treaty  of  peace.  It  does 
not  apply  to  territory  acquired  by  the  present  Federal  Government,  by 
treaty  or  conquest,  from  a  foreign  nation. 

"  The  United  States,  under  the  present  Constitution,  cannot  acquire 


INTRODUCTORY    NOTE. 

territory  to  be  held  as  a  colony,*  to  be  governed  at  its  will  and  pleasure. 
But  it  may  acquire  territory  which,  at  the  time,  has  -not  a  population 
that  fits  it  to  become  a  State,  and  may  govern  it  as  a  Territory  until  it 
has  a  population  which,  in  the  judgment  of  Congress,  entitles  it  to  be 
admitted  as  a  State  of  the  Union. 

<<  During  the  time  it  remains  a  Territory,  Congress  may  legislate  over 
it  within  the  scope  of  its  constitutional  powers  in  relation  to  citizens  of 
the  United  States— and  may  establish  a  Territorial  Government— and 
the  form  of  this  local  Government  must  be  regulated  by  the  discretion 
of  Congress — but  with  powers  not  exceeding  those  which  Congress 
itself,  by  the  Constitution,  is  authorized  to  exercise  over  citizens  of  the 
United  States,  in  respect  to  their  rights  of  persons  or  rights  of 
property. 

IV. 

"  The  territory  thus  acquired,  is  acquired  by  the  people  of  the  United 
States  for  their  common  and  equal  benefit,  through  their  agent  and 
trustee,  the  Federal  Government.  Congress  can  exercise  no  power  over 
the  rights  of  persons  or  property  of  a  citizen  in  the  Territory  which  is 
prohibited  by  the  Constitution.  The  Government  and  the  citizen,  when- 

'^'  Colony."— It  is  no  part  of  the  design  of  this  Examination  to  remark  upon  any 
thing  in  the  Court's  decision  hut  the   two  points  mentioned— the  abrogation  of  the 
Compromise  Act,  and  the  extension  of  the  Constitution  to  territories ;  but  the  phrase 
"  colony,"  and  the  doctrine  delivered  in  relation  to  that  species  of  dependency,  calls 
for  a  remark  which,  as  it  cannot  go  into  the  body  of  the  work,  must  find  a  place  in  a 
note.     The  meaning  of  it  is  too  well  fixed  to  admit  of  ambiguous  sense,  even  in  a 
popular  harangue,  much  less  in  a  judicial  decision.     It  always  signifies  a  body  of  cul 
tivators  transplanted  by  the  government  to  a  distant  possession,  and  governed  and 
protected  there  by  the  mother  country,  of  which  it  is  to  be  always  the  dependent— 
never  the  equal.     The  term  has  never  been  applied  to  our  territories,  and  cannot  be 
without  a  total  change  in  their  nature.     Distance,  governmental  transplantation,  per 
petual  inferiority,  is  their  inexorable  characteristic.     As  such,  the  question  of  colonies 
is  purely  and  simply  a  political  question,  for  the  determination  of  the  political  power  ; 
and  as  such  was  determined  some  fifty  odd  years  ago  by  our  Government.     The  de 
termination  was,  that  the  United  States  would  have  no  colony  which  required  a  navy 
to  guard  it,  and  to  keep  open  communication  with  it.     And  that  determination,  by  its 
import  and  express  terms,  admitted  Cuba  as  an  exception— that  island  being  near 
enough  to  our  coast  to  be  safely  reached  without  the  convoy  of  a  fleet,  and  °strong 
enough  in  its  natural  and  artificial  defences  to  be  protected  by  laud  forces.     But 
while  tliis  exception  of  Cuba  was  made,  all  designs  upon  it  inconsistent  with  fair  pur 
chase,  or  honorable  conquest  in  just  war,  were  sternly  repudiated.     The  doctrine  of 
the  old  school  was  that,  geographically,  Cuba  belonged  to  the  New  World,  and  to  the 
North  American  part  of  it,  and  to  the   United   States  as  the  chief  power  of  North 
America  ;   and  politically,  to  Spain :  and  that,  while  Spain  declined  to  sell,  and  gave 
us  no  just  cause  of  war,  she  was  to  be  undisturbed  in  the  possession  of  that  island— 


INTRODUCTORY   NOTE.  25 

ever  the  Territory  is  open  to  settlement,  both  enter  it  with  their  re 
spective  rights  defined  and  limited  by  the  Constitution. 

"  Congress  have  no  right  to  prohibit  the  citizens  of  any  particular 
State  or  States  from  taking  up  their  home  there,  while  it  permits  citi 
zens  of  other  States  to  do  so.  Nor  has  it  a  right  to  give  privileges  to 
one  class  of  citizens  which  it  refuses  to  another.  The  Territory  is  ac 
quired  for  their  equal  and  common  benefit — and  if  open  to  any,  it  must 
be  open  to  all  upon  equal  and  the  same  terms. 

"  Every  citizen  has  a  right  to  take  with  him  into  the  Territory  any 
article  of  property  which  the  Constitution  of  the  United  States  recog 
nizes  as  property. 

"  The  Constitution  of  the  United  States  recognizes  slaves  as  property, 
and  pledges  the  Federal  Government  to  protect  it.  And  Congress 
cannot  exercise  any  more  authority  over  property  of  that  description 
than  it  may  constitutionally  exercise  over  property  of  any  other  kind. 

"  The  act  of  Congress,  therefore,  prohibiting  a  citizen  of  the  United 
States  from  taking  with  him  his  slaves  when  he  removes  to  the  Terri 
tory  in  question  to  reside,  is  an  exercise  of  authority  over  private 
property  which  is  not  warranted  by  the  Constitution — and  the  removal 
of  the  plaintiff,  by  his  owner,  to  that  Territory,  gave  him  no  title  to 
freedom." 

These  decisions  upon  their  face  show  themselves  to  be  politi 
cal,  and  tried  by  the  test  of  enforcement,  they  are  proved  to  be  so. 
The  Supreme  Court  cannot  enforce  these  decisions ;  and  that  is  the 
test  of  its  jurisdiction.  Where  it  cannot  enforce,  it  cannot  try. 
The  Court  is  an  authoritative  body,  acting  with  authority,  and 
having  power  to  enforce  its  decisions  wherever  it  has  jurisdic 
tion.  It  can  issue  its  command — (mandamus,  we  command) — 
and  has  a  machinery  to  execute  it — marshals,  jails,  fines,  im 
prisonment.  None  of  this  machinery  can  be  employed  upon 
Congress  and  the  people.  Suasion  is  the  only  operative  agent 
upon  them ;  and  this  agent,  either  moral  or  political,  is  not  the 
weapon  of  the  Court.  The  pulpit  and  the  forum  persuade :  a 
court  commands.  It,  therefore,  acted,  on  these  points,  without 
jurisdiction ;  that  is  to  say,  without  right ;  and,  what  is  more, 

as  mnch  so  as  in  the  island  of  Cadiz.  But  no  other  power  was  to  be  allowed  to  get  it 
from  Spain,  either  by  purchase  or  conquest.  If  it  was  to  be  sold,  the  United  States 
had  the  pre-emption  right  of  purchase :  if  to  be  conquered,  we  the  conqueror.  But 
all  this  open  and  above  board — no  pretexted  wars,  no  false  claims,  no  fictitious  quar 
rels,  no  annoying,  no  bullying,  no  forced  sale. — Jeffersvrfs  Letters. 


26  INTRODUCTORY  NOTE. 

(as  will  be  seen  in  the  course  of  this  examination,)  did  what  the 
political  power  refused  to  do  when  moved  thereto  in  1847  and 
'48.  The  extension  of  the  Constitution  to  Territories  was  then 
attempted  and  repulsed.  To  give  a  right  to  the  Supreme  Court 
to  try  the  question  of  African  slavery  in  free  Territories,  was 
then  attempted,  and  denied.*  To  abrogate  the  Missouri  Com 
promise,  though  the  act  was  then  denounced,  was  not  attempted 
-Mr.  Calhoun  himself  saying  it  was  "  not  to  be  attempted  "— 
assigning  as  a  reason  that  the  attempt  would  disturb  the  Union  ; 
his  real  reason  being,  that  the  party  which  did  it  would  stand 
responsible  for  what  might  (in  consequence)  happen  to  the 
Union :  for  he  was  a  man  of  head,  and  of  system,  and  in  all 
these  movements  constantly  affected  the  defensive. 

I  conclude  this  introductory  note  with  recurring  to  the  great 
fundamental  error  of  the  Court,  (father  to  all  the  political  errors,) 
that  of  assuming  the  extension  of  the  Constitution  to  the 
Territories.  I  call  it  assuming,  for  it  seems  to  be  a  naked  as 
sumption  without  a  reason  to  support  it,  or  a  leg  to  stand  upon 
—condemned  by  the  Constitution  itself,  and  the  whole  history 
of  its  formation,  and  administration.  Who  were  the  parties  to 

*  It  was  in  1848,  in  one  of  the  abortive  bills  reported  by  a  select  committee  for  the 
government  of  the  new  territories,  and  in  which  the  slave  was  to  have  the  right  of  suing 
his  master  for  his  freedom,  with  an  appeal  to  the  Supreme  Court.  The  readiness  with 
which  the  debate  ran  into  the  personal  composition  of  the  Court,  and  became  political 
and  geographical,  and  distrustful  of  the  judges,  as  the  speaker  and  the  judge  should 
be  on  opposite  sides  of  Mason  &  Dixon's  line,  shows  the  extreme  delicacy  of  carrying 
such  questions  to  the  Court.  Thus  :  "  Mr.  Corwin  asserted  his  belief,  that  if  Senator! 
from  the  South  believed  that  in  an  appeal  to  the  Supreme  Court,  in  cases  under  this 
bill,  the  decision  would  be  against  them,  they  would  never  vote  for  this  biU.  So,  if 
the  Senator  from  Vermont  (Mr.  Phelps)  thought  the  decision  would  be  against  him,  he 
would  never  vote  for  it."  "  Mr.  Foote  feared  that  the  decision  of  the  Supreme  Court,  as 
now  constituted,  would  be  against  the  South."  »  Mr.  Hale  professed  to  have  no  con 
fidence  in  the  Supreme  Court,  as  now  constituted."  "  Mr.  Reverdy  Johnson  believed  in 
the  existence  of  the  power  in  Congress  to  pass  a  law  to  prohibit  slavery  in  territories,  and 
if  such  a  law  was  presented  to  the  Supreme  Court  for  a  decision  on  its  constitutionality, 
it  would  be  in  favor  of  the  law.  As  a  judicial  question,  the  decision  would  be  against 
the  protection  of  the  South."  Mr.  Badger,  of  North  Carolina,  "  Had  a  respect  for  the 
Supreme  Court,  but  he  was  not  willing  to  leave  the  decision  of  the  question  to  a  court, 
so  large  a  portion  of  which  was  opposed  to  slavery."  Mr.  Bell,  of  Tennessee,  opposed 
the  bill  on  the  ground,  "  that  the  Court  was  the  weakest  of  the  three  co-ordinate 
branches  of  the  Government— too  weak  to  command  obedience,  or  to  settle  such  ques 
tions  ;  and  he  drew  the  inference  that  a  decision  of  it  before  a  tribunal  so  feeble  might 
break  down  the  Court,  while  it  failed  to  satisfy  the  public  mind.— Mr.  Bell  on  Oregon. 


INTRODUCTORY   NOTE.  27 

it  ?  The  States  alone.  Their  delegates  framed  it  in  the  Federal 
convention :  their  citizens  adopted  it  in  the  State  conventions. 
The  North-West  Territory  was  then  in  existence,  and  had  been 
for  three  years ;  yet  it  had  no  voice,  either  in  the  framing,  or 
adopting  of  the  instrument — no  delegate  at  Philadelphia,  no 
submission  of  it  to  their  will  for  adoption.  The  preamble  shows  it 
was  made  by  States,  and  for  States.  Territories  are  not  alluded  to 
in  it.  The  body  of  the  instrument  shows  the  same  thing,  every 
clause,  except  one,  being  for  States ;  and  Territories,  as  political 
entities,  never  mentioned  once ;  and  the  word  "  territory,"  oc 
curring  but  once,  and  that  as  property,  assimilated  to  other  pro 
perty — as  land,  in  fact ;  and  as  a  thing  to  be  disposed  of — to  be 
sold.  Now  you  never  sell  a  territorial  government ;  but  you 
sell  property :  and  in  that  sense  alone  does  the  word  territory 
occur,  and  that  but  once  in  the  whole  instrument.  Tried  by 
the  practice  under  it,  and  the  Territory  is  a  subject,  without  a 
political  right — no  right  to  vote  for  President,  or  Vice  President, 
or  Senator,  or  Eepresentative  in  Congress ;  nor  even  to  vote 
through  their  delegate,  on  any  question  in  Congress — all  their 
officers  appointable  and  removable  by  the  federal  authority, 
even  their  judges — their  Territory  to  be  cut  up  as  Congress 
pleases ;  even  parts  of  it  to  be  given  to  Indians :  no  political 
rights  under  it,  except  as  specially  granted  by  Congress :  no 
benefit  from  any  act  of  Congress,  except  specially  named  in  it, 
or  the  act  specially  extended  to  them,  like  the  subject  colonies 
and  dependencies  of  Great  Britain.  How  can  the  Constitution 
go  to  them  of  itself,  when  no  act  of  Congress  under  it  can  go 
to  them  unless  specially  extended  ?  Far  from  embracing  these 
Territories,  the  Constitution  ignores  them,  and  even  refuses  to 
recognize  their  existence  where  it  would  seem  to  be  necessary 
— as  in  the  case  of  fugitives  from  service,  and  from  labor.  Look 
at  the  clause.  It  only  applies  to  States — fugitives  from  States 
to  States.*  Why  ?  because  the  ordinance  of  '87,  the  organic  law 
of  the  Territories,  made  that  provision  for  the  Territories,  and 
about  in  the  same  words,  and  before  it  was  put  in  the  Consti- 


*  "  No  person  held  to  service  or  labor  in  one  State,  under  the  laws  thereof,  and 
escaping  into  another,  shall,  in  consequence  of  any  law  or  regulation  therein,  he  dis 
charged  from  such  service  or  labor,  but  shall  be  delivered  up  on  the  claim  of  the  party 
to  whom  such  service,  or  labor,  may  be  due." —  Article  4,  sec.  2.  " 


28  INTRODUCTORY  NOTE. 

tution.*  In  both  places  it  is  an  organic  provision,  barren  of  ex 
ecution  until  a  law  should  be  passed  under  it  to  give  it  effect — 
which  was  clone  in  the  fugitive  slave  and  criminal  act  of  1793 
— that  act  applying  to  Territories  as  well  as  to  States — and  so 
carrying  both  the  Constitution  and  the  ordinance  into  eifect. 
This  view  is  fundamental  and  decisive,  and  requires  to  be  bet 
ter  known  by  the  public  than  it  is.  There  are  two  distinct 
clauses  in  the  Constitution — one  applying  to  fugitives  from  ser 
vice,  the  other  to  fugitives  from  justice.  They  are  both  limited 
to  States.f  Under  these  clauses,  a  criminal  or  slave  fugitive  to 
or  from  a  Territory,  or  from  one  Territory  to  another,  or  from 
one  State  to  a  Territory,  or  from  a  Territory  to  a  State,  cannot 
be  demanded.  A  felon  escaping  with  a  stolen  slave  into  a  Ter 
ritory,  cannot  be  demanded  under  the  Constitution.  There  are 
other  clauses  in  the  Constitution  relating  to  slaves,  not  one  of 
which  extends  to  Territories.  The  fourth  Article,  section  4, 
guarantees  protection  against  "  domestic  violence,"  (servile  in 
surrection;)  but  the  protection  is  limited  to  States.:]:  Territo 
ries  can  only  receive  it  from  Congress.  The  acknowledgment 
of  property  in  a  slave,  contained  in  the  first  Article,  (which  taxes 
slaves  as  property,)  is  confined  to  States.  Not  a  clause  in  the 
Constitution  which  relates  to  slaves,  extends  to  Territories— 
neither  the  fugitive  slave  clause,  nor  the  protection  against  do 
mestic  violence,  nor  the  acknowledgment  of  property  implied 
in  taxation  :  and  if  the  Constitution  was  extended  to  Territories, 
(which  it  cannot  be,)  not  a  claim  could  be  set  up  under  it  for 
protection  to  slave  property  !  Not  a  law  could  be  made  under 
it  for  the  protection  of  that  property.  The  Constitution  does 


*  "  Provided,  always,  that  any  person  escaping  into  the  same,  (the  North- West 
Territory,)  from  whom  labor  or  service  is  lawfully  claimed  in  any  one  of  the  original 
States,  such  fugitive  may  be  lawfully  reclaimed,  and  conveyed  to  the  person  claiming 
his  or  her  labor  or  service  as  aforesaid." — Ordinance  of '87,  Art.  6. 

f  "  Any  person  charged  in  any  State  with  treason,  felony,  or  other  crime,  who  shall 
flee  from  justice,  and  be  found  in  another  State,  shall,  on  demand  of  the  executive 
authority  of  the  State  from  which  he  fled,  be  delivered  up  to  the  State  having  jurisdic 
tion  of  the  crime." — Article  4,  section  2. 

%  The  United  States  shall  guarantee  to  every  State  in  the  Union  a  republican  form 
of  government,  and  shall  protect  each  of  them  against  invasion  ;  and,  on  application  of 
the  legislature  or  of  the  executive,  (when  the  legislature  cannot  be  convened,)  against 
domestic  violence." — Art.  4,  sec.  4. 


INTRODUCTORY   NOTE.  29 

not  even  grant  protection  to  a  Territory  against  invasion !  *  nor 
does  it  guarantee  them  a  republican  f  form  of  government ! 
and  that  is  the  reason  that  they  have  never  been  governed  on 
republican  principles.  And  this  is  the  instrument  which  gives 
such  supreme  protection  to  slave  property  in  Territories ! 
After  this,  to  say  that  the  Constitution  extends  to  Territories, 
would  be  about  equal  to  saying  that  the  territorial  ordinance 
of  '87  extends  to  the  States.  The  pretension  was  driven  out 
of  Congress  when  it  presented  itself  there :  judicially  decreed 
by  the  Supreme  Court,  it  becomes  accepted  law  to  one  half  the 
Union ;  and  acquiescence  from  all  others  who  do  not  consider 
the  difference  between  judicial  and  political  subjects :  and  is 
not  to  be  a  barren  power  in  the  administration  of  our  Govern 
ment.  Mr.  Calhoun  declared  its  effect  when  he  proclaimed  it, 
saying : 

"  /  deny  that  the  laws  of  Mexico  can  have  the  effect  attributed  to 
them,  (that  of  keeping  Slavery  out  of  New  Mexico  and  California.) 
As  soon  as  the  treaty  between  the  two  countries  is  ratified,  the  sove 
reignty  and  authority  of  Mexico  in  the  territory  acquired  by  it  becomes 
extinct,  and  that  of  the  United  States  is  substituted  in  its  place,  con 
veying  the  Constitution  with  its  overriding  control  over  all  the  laws 
and  institutions  of  Mexico  inconsistent  with  it" — Oregon  Debate, 
1848. 

This  is  the  declared  effect  of  the  transmigration  of  the  Con 
stitution  to  free  territory  by  the  author  of  the  doctrine ;  and 
great  is  the  extent  of  country,  either  acquired  or  to  be  acquired, 
in  which  the  doctrine  is  to  have  application.  All  New  Mexico 
and  California  at  the  time  it  was  broached — all  the  Territories 
now  held,  wherever  situated,  and  as  much  as  can  be  added  to 
them — these  additions  have  already  been  considerable,  and  vast 
and  varied  accessions  are  still  expected.  Arizonia  has  been 
acquired  ;  fifty  millions  were  offered  to  Mexico  for  her  northern 
half,  to  include  Monterey  and  Saltillo ;  a  vast  sum  is  now  offer 
ed  for  Sonora  and  Sinaloa,  down  to  Guaymas ;  Tehuantepec, 
Nicaragua,  Panama,  Darien,  the  Spanish  part  of  San  Do 
mingo,  Cuba!  with  islands  on  both  sides  of  the  tropical  con 
tinent.  Nor  do  we  stop  at  the  two  Americas,  their  coasts 

*  Article  4,  section  4.  f  Same. 


30  INTKODUCTOET   NOTE. 

and  islands,  extensive  as  they  are  ;  but  circumvolving  the  terra 
queous  globe,  we  look  wistfully  at  the  Sandwich  Islands,  and 
on  some  gem  in  the  Polynesian  group ;  and  plunging  to  the 
antipodes,  pounce  down  upon  Formosa  in  the  Chinese  Sea.  Such 
were  the  schemes  of  the  last  Administration,  and  must  continue, 
if  its  policy  should  continue.  Over  all  these  provinces,  isth 
muses,  islands,  and  ports,  now  free,  our  Constitution  must  spread, 
(if  we  acquire  them,  and  the  decision  of  the  Supreme  Court 
stands,)  overriding  and  overruling  all  anti-slavery  law  in  their 
respective  limits,  and  planting  African  slavery  in  its  place,  be 
yond  the  power  of  Congress  or  the  people  there  to  prevent  it. 

I  object  to  the  Court's  opinion,  not  only  because  it  was  with 
out  jurisdiction,  and  wrong  in  itself,  but  because  it  was  political, 
pertaining  to  the  policy,  or  civil  government  of  the  Union — 
interfering  with  the  administration  of  the  affairs  of  the  State. 


HISTORICAL  AND  LEGAL 
EXAM  IN  ATI O  N 


SUPEEME  COURT'S  DECISION  ON  THE  MISSOURI   COMPROMISE 

ACT,  AND  THE  EEXTENSION  OF  THE  CONSTITUTION 

TO    TERRITORIES, 


AS   PRONOUNCED   IN 


THE   DRED    SCOTT 


This  Examination  divides  itself  into  three  parts  : — 
FIKST. — As  it  concerns  the  power  exercised  by  Congress 
over  the  original  Territory  of  the  United  States.  SECONDLY. — 
As  it  concerns  the  new  Territory  acquired  by  the  Louisiana  pur 
chase.  THIRDLY. — As  it  concerns  the  Missouri  Compromise  Act. 
And  it  will  be  the  point  of  the  whole  Examination  to  show  that 
Congress  exercised,  and  rightfully,  supreme  authority  over  these 
Territories,  both  original  and  acquired ;  that  it  governed  them 
independently  of  the  Constitution,  and  incompatibly  with  it, 
and  by  virtue  of  sovereign  and  proprietary  rights ;  that  it  did 
what  it  deemed  best  for  the  young  community,  as  a  father  does 
for  his  children  ;  and  that  the  question  of  admitting  or  prohib 
iting  slavery,  either  in  the  new  or  old  Territories,  never  rose 
higher  than  a  question  of  expediency.  And  that  this  continued 
to  be  the  case,  without  distinction  of  men  or  parties,  and  with  the 


32  EXAMINATION   OF  THE 

universal  concurrence  of  all  departments  of  the  Government- 
legislative,  judicial  and  executive.  State  and  Federal — from  the 
legislative  adoption  of  the  ordinance  of  '87  in  the  year  '89, 
down  to  the  abrogation  of  the  Missouri  Compromise  Act,  in 
1854. 


FIEST  STAGE  OF  THE  EXAMINATION :— POWER  OF 
CONGRESS  OYER  THE  ORIGINAL  TERRITORY. 

I. — At  the  head  of  the  objections  to  the  Court's  opinion, 
stands  the  uniform  action  of  the  Government  for  thirty-six  years 
on  one  of  its  branches,  and  seventy  on  the  other.  Uniformity 
of  action  on  the  part  of  authorities,  appointed  to  administer 
government,  is  usually  admitted  to  be  evidence  of  right  action ; 
and,  it  is  believed,  no  higher  case  of  uniformity  of  governmen 
tal  action — or  of  longer  continued  uniformity— or  on  the  part  of 
better  qualified  authorities — can  be  found  than  in  the  case  un 
der  consideration.  In  point  of  length  of  time,  it  is  that  of  the 
existence  of  the  Government ;  in  point  of  uniformity,  no  excep 
tion  ;  in  point  of  fitness  in  the  actors,  most  eminent — consisting 
of  the  generation  which  founded  the  Government,  and  the  sec 
ond  generation,  disciple  of  the  first,  which  succeeded  to  its  ad 
ministration  ;  comprehending  in  all  this  time  all  the  depart 
ments  of  all  the  governments,  State  and  Federal — and  in  all 
their  branches — legislative,  executive,  and  judicial.  Such  uni 
formity  furnishes  a  persuasive  evidence  that  this  action  was 
right ;  and  it  is  the  object  of  this  Examination  to  show  that  it 
was  so,  by  showing  what  that  action  wTas,  and  the  reasons  upon 
which  it  was  founded  ;  so  that  the  authority  of  law  and  reason 
may  be  addpd  to  that  of  uniform  practice. 

It  was  from  the  7th  day  of  August,  1789 — that  is  to  say, 
from  the  beginning  of  the  first  session  of  the  first  Congress  un 
der  the  Federal  Constitution— that  this  uniformity  began.  It 
was  on  that  day  that  the  new-born  Congress,  putting  the  new 
Government  into  operation,  adopted  as  a  part  of  its  machinery, 
and  adapted  to  the  working  of  the  new  Government,  the  famous 
ordinance  of  1787,  for  the  government  of  the  North- West  Terri 
tory — changing  not  one  word  in  its  whole  enactments,  except 


SUPREME  COURT'S  DECISION,  ETC.  33 

to  substitute  the  President  and  Senate  for  the  old  Continental 
Congress,  in  making  the  Territorial  appointments,  and  holding 
the  communications  with  the  officers,  which  the  ordinance  re 
quired.  The  preamble  declared  its  object — to  adapt  it  to  the 
present  Constitution,  and  to  continue  its  full  effect  in  the  Terri 
tories  ;  and  the  enactments  of  this  adopting,  and  adapting,  stat 
ute,  corresponded  with  its  declared  object.  It  was  brief,  and  in 
these  words : 

"WHEREAS,  In  order  that  the  ordinance  of  the  United  States  in 
Congress  assembled,  for  the  government  of  the  territory  Northwest  of 
the  river  Ohio  may  continue  to  have  full  effect,  it  is  requisite  that  cer 
tain  provisions  should  be  made,  so  as  to  adapt  the  same  to  the  present 
Constitution  of  the  United  States :  THEREFORE,  Be  it  enacted.  That  in 
all  cases  in  which  by  the  said  ordinance  any  information  is  to  be  given, 
or  communication  made  by  the  Governor  of  the  said  Territory  to  the 
United  States  in  Congress  assembled,  or  to  any  of  their  officers,  it  shall 
be  the  duty  of  the  said  Governor  to  give  such  information,  and  to 
make  such  communication  to  the  President  of  the  United  States ;  and 
the  President  shall  nominate,  and  by  and  with  the  advice  and  consent 
of  the  Senate,  shall  appoint  all  officers  which  by  the  said  ordinance  were 
to  have  been  appointed  by  the  United  States  in  Congress  assembled ; 
and  all  officers  so  appointed  shall  be  commissioned  by  him ;  and  in  all 
cases  where  the  United  States  in  Congress  assembled  might,  by  the  said 
ordinance,  revoke  any  commission  or  remove  from  any  office,  the  Presi 
dent  is  hereby  declared  to  have  the  same  powers  of  revocation  and  re 
moval.  SECTION  2. — That  in  case  of  the  death,  removal,  resignation, 
or  necessary  absence  of  the  Governor  of  the  said  Territory,  the  Secre 
tary  thereof  shall  be,  and  he  hereby  is  authorized  and  required  to  ex 
ecute  all  the  powers,  and  perform  all  the  duties,  of  the  Governor  during 
the  vacancy  occasioned  by  the  removal,  resignation,  or  necessary  absence 
of  the  said  Governor." 

Thanks  to  the  wise  custom  which  still,  in  proper  cases,  pre 
fixed  preambles  to  bills,  and  which  was  in  use  at  the  time  of 
the  passing  of  this  act.  The  preamble  is  a  key  to  unlock  the 
meaning  of  an  act,  and  in  this  case  unlocks  it  very  completely, 
by  showing  that  its  object  was  to  "  continue  the  full  operation 
of  the  ordinance," — and  merely  to  adapt  its  working  to  the 
machinery  of  the  new  Government,  which  was  done  by  the 
simple  substitution  of  the  President  and  Senate  for  the  old  Con 
gress  in  the  business  of  appointments,  removals,  and  communi- 
3 


34  EXAMINATION   OF   THE 

cations:  and  with  this  exception,  no  other  part  of  the  ordinance 
was  touched — every  provision  and  every  enactment  remaining 
as  it  was,  and  the  new  Congress  left  to  do  whatever  was  re 
quired  from  the  old  Congress,  as  in  approving  or  disapproving 
the  acts  of  the  Territorial  legislation.  No  continuation  of  an 
act,  at  the  change  of  a  Government,  could  be  more  complete 
and  perfect  than  in  this  brief  act  of  the  7th  of  August,  1789, 
and  its  place  in  the  list  of  acts  passed,  shows  the  degree  of  im 
portance  attached  to  it.  It  was  !Nb.  8.  in  that  list ! — the  pre 
vious  seven  being  those  which  wrere  indispensable  in  putting 
the  machinery  of  the  new  Government  into  operation  in  the 
States,  as  this  act  was  to  do  the  same  for  the  Territories.  The 
ordinance,  then,  became  as  much  the  act  of  the  new  Government 
as  if  it  had  originated  under  it ;  as  if  it  had  never  existed  be 
fore  ;  as  if  it  had  undergone  no  transition  from  an  expiring  to  a 
new-born  Government.  And  with  this  accords  the  opinion  of 
the  Supreme  Court,  for  it  says : 

"  Among  the  earliest  laws  passed  under  the  new  Government,  is  one 
reviving  the  ordinance  of  1787,  which  had  become  inoperative  and  a 
nullity  upon  the  adoption  of  the  Constitution.  This  law  (the  reviving 
law)  introduces  no  new  form  or  principles  for  its  government,  but  recites, 
in  the  preamble,  that  it  is  passed  in  order  that  the  ordinance  may  con 
tinue  to  have  full  effect,  and  proceeds  to  make  only  those  rules  and 
regulations  which  were  needful  to  adapt  it  to  the  new  Government,  into 
whose  hands  the  power  had  fallen." 

And  to  the  same  effect,  Mr.  Justice  M'Lean,  in  his  dissent 
ing  opinion,  thus : 

"  It  is  clear  that  the  ordinance  did  not  go  into  operation  by  virtue 
of  the  authority  of  the  confederation,  but  by  reason  of  its  modification 
and  adoption  by  Congress  under  the  Constitution.  It  seems  to  be  sup 
posed,  in  the  opinion  of  the  Court,  that  the  articles  of  cession  placed  it 
on  a  different  footing  from  Territories  subsequently  acquired.  I  am 
unable  to  perceive  the  force  of  this  distinction.  That  the  ordinance  was 
intended  for  the  government  of  the  Northwestern  Territory,  and  was 
limited  to  such  Territory,  is  admitted.  It  was  extended  to  southern 
Territories,  with  modifications,  by  acts  of  Congress,  and  to  some  northern 
Territories,  But  the  ordinance  was  made  valid  by  the  act  of  Congress, 
and  without  such  act  could  have  been  of  no  force.  It  rested  for  its 
validity  on  the  act  of  Congress,  the  same  in  my  opinion,  as  the  Mis 
souri  compromise  line." 


SUPREME  COURT'S  DECISION,  ETC.  35 

And  thus  the  ordinance  of  the  Continental  Congress  of  1787, 
became  an  act  of  the  Federal  Congress  of  1789,  and  those  who 
wish  to  attack  it,  must  attack  it  as  that  act,  and  not  as  that  or 
dinance.  And  now,  the  question  is,  by  what  authority?  As 
an  act  of  the  old  Congress,  its  validity  had  been  questioned,  there 
being  nothing  in  the  articles  of  confederation  to  justify  it.  As 
an  act  of  the  new  Congress,  it  must  find  its  authority  independ 
ently  of  the  one  which  had  ceased  to  exist.  Was  it  in  the  Con 
stitution?  The  ordinance,  as  ordinance,  was  made  before  the 
Constitution,  consequently  not  made  under  it.  As  an  act  of 
Congress,  it  was  made  after  the  Constitution,  but  not  under  it, 
for  it  is  a  clean  and  naked  piece  of  abnegation  and  contradic 
tion  of  the  Constitution  from  beginning  to  end.  Here  there  is  a 
beginning — a  starting  point — necessary  to  be  seen  and  con 
sidered  at  the  commencement  of  every  examination  of  the  power 
of  Congress  to  legislate  for  Territories ;  and  at  this  point  we  see 
a  Territorial  form  of  government  adopted  and  enforced,  made 
before  the  Constitution,  and  contrary  to  its  essential  and  funda 
mental  principles;  made  in  the  plenitude  of  absolute  power, 
and  governing  the  Territory  for  its  own  good  without  reference 
to  its  will,  and  as  a  father  governs  and  takes  care  of  his  infant 
children.  And  seeing  all  this,  the  question  still  recurs,  by  what 
authority  ?  And  the  answer  is,  by  the  same  authority  in  the 
new  Congress  of  1789  as  in  the  old  one  of  1787,  and  that  was  the 
right  of  the  owner  to  use  what  he  owned,  and  of  the  sovereign 
to  rule  within  his  sovereignty.  There  was  no  authority  in  the 
articles  of  confederation  to  make  the  ordinance,  yet  Congress 
made  it,  and  with  the  approbation  of  all  the  States.  There  was 
no  authority  in  the  Constitution  to  adopt  it,  yet  Congress  adopted 
it,  and  with  the  approbation  of  two  generations.  The  right  to 
hold  land,  and  plant  people  upon  it,  was  a  right  to  take  care  of 
the  land  and  the  people ;  and  that  right  became  a  duty  in  this 
case,  by  the  engagement  entered  with  the  ceding  States  to  dis 
pose  of  the  soil,  and  to  build  up  political  communities  upon  it. 
The  Congress  of  the  Confederation  made  the  engagement,  and 
executed  it  in  the  ordinance  of  1787 ;  the  Constitution  devolved 
the  engagement  upon  the  new  Congress,*  which  executed  it  in 

*  All  debts  contracted,  and  all  engagements  entered  into  before  the  adoption  of 
this  Constitution,  shall  be  as  valid  against  the  United  States  under  this  Constitution 
as  under  the  Confederation. — Article  6. 


36  EXAMINATION    OF   THE 

the  same  way.  One  made  the  ordinance,  the  other  adopted  it ; 
and  the  latter  was  the  superior  authority  ;  and  from  the  moment 
of  the  adoption,  eifaced  the  other ;  so  that,  while  descriptively 
we  may  still  quote  the  act  as  the  ordinance  of  1787,  yet  for 
legal  effect  and  virtue,  and  for  all  the  purposes  of  right  and 
justice,  it  must  be  cited  and  considered  as  an  act  of  Congress 
of  1789. 

The  character  of  the  ordinance — its  provisions  and  enact 
ments — become  the  next  inquiry  ;  for  the  new  Congress  having 
adopted  it,  and  made  it  its  own,  and  enforced  it,  its  provisions 
became  the  measure  of  the  authority  which  the  Congress  exer 
cised.  And  these  will  be  found  to  be  of  the  highest  sove 
reign  order — ruling  people  without  their  consent ;  giving  and 
taking  away  offices  ;  granting  what  it  pleased  as  favor,  nothing 
as  right;  and  even  abolishing  the  rights  of.  private  property 
without  compensation  :  for  many  were  the  slaves  set  free  in  the 
old  French  settlements  of  Indiana  and  Illinois  without  compen 
sation — set  free  for  a  public  political  object,  without  reference 
to  the  rights,  or  regard  to  the  will  of  the  owners.*  That  act  of 
Congress,  of  August  7th,  1789,  did  all  this,  and  with  universal 
approbation;  and  certainly  not  under  the  Constitution;  for  they 
contradict  it  at  all  points.  Certainly  not  by  exercising  the 
powers  of  the  States;  for  no  State  had  ever  exercised  such 
power.  Certainly  not  under  any  written  authority  any  where  ; 
for  none  such  can  be  shown.  How  then  did  it  get  these  pow 
ers  ?  Simply  as  proprietor,  and  as  sovereign !  The  Federal 
Congress  of  '89  got  it  as  the  Continental  Congress  of  '87  got  it — 
as  a  right  incident  to  ownership  and  jurisdiction,  and  as  a  duty 
under  the  cession  acts ;  and  the  only  limitation  upon  its  power 
was  in  the  cession  acts — in  the  obligation  to  dispose  of  the  soil, 
to  populate  it,  and  to  build  up  future  Republican  States  upon  it. 
And  this  it  did,  in  the  wisest  manner  for  young,  distant,  and 
miscellaneous  communities,  subject  to  be  composed  of  the 
vicious  and  the  violent,  as  well  as  the  good  and  the  gentle — 

*  I  consider  the  passage  of  this  law  to  have  heen  an  assertion  by  the  first  Congress 
of  the  power  of  the  United  States  to  prohibit  slavery  within  this  part  of  the  Territory 
of  the  United  States  ;  for  it  clearly  shows  that  slavery  was  thereafter  to  be  prohibited 
there,  and  it  could  be  prohibited  only  by  an  exertion  of  the  power  of  the  United  States, 
under  the  Constitution ;  no  other  power  being  capable  of  operating  within  that  Terri 
tory  after  the  Constitution  took  effect. — J/r.  Justice  Curtis. 


SUPREME  COURT'S  DECISION,  ETC.  37 

holding  them  in  a  state  of  pupilage,  as  a  father  does  his  chil 
dren,  training  them  by  degress  to  self-government,  and  admit 
ting  them  to  it  when  prepared  for  it.  On  110  other  ground  than 
that  of  absolute  authority  (limited  only  by  the  cession  acts)  over 
these  Territories  can  the  enactments  of  this  act  of  Congress  be 
accounted  for ;  and  upon  that  ground  I  place  it,  disclaiming 
any  help  from  any  quarter — from  Federal  or  State  authority, 
single  or  combined. 

The  ordinance  provide^  only  for  the  government  of  tne 
Territories — not  for  the  disposal  of  the  lands  within  them ;  and 
hence  the  propriety  of  the  clause  in  the  Constitution  to  au 
thorize  Congress  to  dispose  of  the  territory,  i.  e.  the  land ;  and 
to  make  needful  rules  and  regulations  respecting  it.  Neither 
that  clause,  nor  any  other  in  the  Constitution,  applied  to  the 
government  of  the  Territory,  because  that  had  been  provided  for 
in  the  ordinance ;  and  the  ordinance  itself  had  been  provided 
for  in  the  assumption  by  the  new  Federal  Government  of  all 
the  engagements  entered  into  by  the  old  Continental  Congress  ; 
and  that  engagement  was  promptly  fulfilled  by  the  adoption  of 
the  ordinance  among  the  very  first  acts  of  the  new  Government. 
Though  entitled  for  the  North- West  Territory,  this  fundamental 
Territorial  law  was  intended  for  the  South- West  also,  and  was 
applied  to  the  Territories  there  as  soon  as  they  were  ceded  ;  and, 
in  fact,  became  the  basis  of  all  the  Territorial  governments  down 
to  the  passage  of  the  Kansaz-Nebraska  Act  in  1851.  The  ordi 
nance  was  the  Constitution  for  the  Territories,  as  the  Constitu 
tion  itself  was  for  the  States ;  and  both  were  parts  of  the  same 
system,  and  made  at  the  time,  (the  ordinance  a  few  days  first,) 
and  by  the  same  men,  it  may  be  said ;  *  and  in  concert :  and 
no  Constitution  could  have  been  made  but  hand  in  hand  with 
the  ordinance.  That  measure  settled  the  slavery  question ! 
without  which  settlement  no  Constitution  could  have  been 
made.  It  settled  it,  by  dividing  the  western  Territory  about 
equally  between  the  free  and  the  slave  States — the  Ohio  river, 
(about  equidistant  from  the  northern  lakes  and  the  southern 
gulf,)  being  taken  as  the  dividing  line  ;  and  it  made  the  free 

*  Besides  the  identity  of  feelings  and  of  object,  in  the  members  of  the  two  bodies, 
several  were  actually  members  of  both  at  the  same  time :  as,  Mr.  Madison,  of  Virginia ; 
Mr.  Rufus  King,  of  New  York ;  William  Samuel  Johnson,  of  Connecticut ;  William 
Blount,  of  North  Carolina  ;  Charles  Pinckney,  of  South  Carolina ;  William  Few,  of 
Georgia. 


38  EXAMINATION    OF   THE 

Territory  safe  for  the  slave  States  by  the  stipulation  in  favor  of 
the  restoration  of  fugitive  slaves.  The  settlement  of  this  ques 
tion  smoothed  the  road  to  the  formation  of  the  Constitution. 
The  two  bodies  sat  at  the  same  time — the  Continental  Congress 
at  "New  York,  the  Federal  Convention  in  Philadelphia — and 
were  composed  of  men  united  in  principle,  and  laboring  for  the 
same  object.  The  ordinance  was  formed  the  13th  of  July, 
abolishing  slavery  in  the  North-West,  and  authorizing  the  re 
covery  of  fugitives  from  service  :  the  corresponding  clause  in 
the  Constitution  for  the  recovery  of  fugitives  was  adopted  on 
the  29th  of  August  following.  That  brings  them  near  together 
in  point  of  time,  and  shows  the  dependence  of  one  upon  the 
other.  Then  comes  identity  of  phraseology,  both  the  same,  and 
so  dainty  in  the  selection  of  its  words  :  *  "  Persons,"  instead  of 
slaves — "  fugitives,"  instead  of  runaways — "  held  to  service," 
instead  of  being  owned — "  the  party  lawfully  claiming,"  instead 
of  master ;  and  then  the  phrase  "  escaping,"  used  in  both,  and  not 
proper  in  either  as  applicable  to  a  runaway  slave.  The  phrase 
implies  a  condition  which  is  not  the  normal  state  of  the  slave  ; 
as  confinement,  and  danger.  A  prisoner  escapes  from  custody ; 
a  soldier  escapes  death.  Such  identity  of  language,  and  so  un 
usual  in  speaking  of  runaway  slaves,  and  all  amphibological, 
could  not  have  been  hit  upon  except  in  concert,  and  as  agreed 
upon  beforehand ;  which  in  fact  was  the  case  :  for  the  clause  is 
one  of  the  compromises  of  the  Constitution.  And  then  the  con- 
gruity-of  their  provisions,  each  providing  for  a  want  in  its  own 
case,  not  in  the  other.  The  clause  in  the  ordinance  being  made 
for  Territories,  the  recovery  of  the  fugitive  is  limited  to  the 
escapes  from  one  of  the  original  States  to  a  Territory :  the 
clause  in  the  Constitution  being  made  for  States,  is  confined  to 
escapes  from  one  State  to  another.  And  why  ?  Because  the 
Constitution  was  made  for  States,  and  would  not  in  any  way  act 

*  There  shall  he  neither  slavery  nor  involuntary  servitude  in  the  said  Territory, 
otherwise  than  in  the  punishment  of  crimes,  whereof  the  party  shall  have  heen  duly 
convicted,  provided  always,  that  any  person  escaping  into  the  same,  from  whom  labor 
or  service  is  lawfully  claimed  in  any  one  of  the  original  States,  such  fugitive  may  be 
lawfully  reclaimed,  and  conveyed  to  the  person  claiming  his  or  her  labor  or  service  as 
aforesaid. — Ordinance. 

No  person  held  to  service  or  labor  in  one  State,  under  the  laws  thereof,  escaping 
into  another,  shall,  in  consequence  of  any  law  or  regulation  therein,  be  discharged  from 
such  sendee  or  labor,  but  shall  be  delivered  up  on  claim  of  the  party  to  whom  such 
service  or  labor  may  be  due. — Constitution. 


SUPREME  COURT'S  DECISION,  ETC.  39 

upon  a  Territory.*  Then  the  identity  of  the  vote  in  each  ;  for  in 
each  the  vote  upon  the  clause  was  the  same — to  wit :  unani 
mous.  Then  the  origin  of  the  clause  in  each,  being  both  from 
the  South ;  the  clause  in  the  Ordinance  coming  from  a  com 
mittee  of  five,  of  which  two  were  from  Virginia  and  one  from 
South  Carolina :  that  in  the  Constitution  coming  from  South 
Carolina,  moved  by  Mr.  Pierce  Butler,  and  seconded  by  his 
colleague,  Mr.  Charles  Pinckney.  These  similitudes  in  the  two 
clauses,  and  the  instant  adoption  of  the  Ordinance  by  the  first 
Congress  under  the  Constitution,  identify  them  as  parts  of  the 
same  system,  the  work  of  the  same  heads,  and  essential  the  one 
to  the  other — that  is  to  say,  the  Ordinance  to  the  Constitution  : 
for  if  the  slavery  question  had  not  been  settled  as  therein  done 
— Territory  divided  and  runaway  slaves  to  be  given  up — there 
would  have  been  no  Constitution !  and,  consequently,  no  Union  ! 
So  indispensable  was  the  Old  Congress  to  the  Convention, 
that  it  not  only  sat  as  long  as  the  Convention  did,  but  longer — 
waited  to  receive  its  work,  and  provide  for  its  adoption  by  the 
States.  Some  members  of  the  Convention,  as  Mr.  Madison, 
returned  to  the  expiring  Congress,  and  assisted  at  this  good 
work.  The  newly-formed  Constitution  was  forwarded  by  Gen. 
Washington,  as  President  of  the  Convention,  to  the  President  of 
the  Congress,  with  a  patriotic  letter  recommending  its  adop 
tion.  The  old  Congress  placed  the  instrument  before  the  States, 
urged  its  acceptance,  and  expired  after  that  last  act ;  so  that 
the  Congress  and  the  Convention — the  Ordinance  and  the  Con 
stitution — were  all  parts  of  one  harmonious  whole. 

The  whole  Constitution  was  carried  out  upon  the  principle  of 
ignoring  the  existence  of  Territories ;  I  speak  of  Territories,  im 
plying  political  existence  and  organization,  in  contradistinction 
to  territory,  signifying  land ;  and  repeat  that,  as  political  enti 
ties,  the  Constitution  ignores  tliem.  This  may  be  seen  in  every 

*  The  same  in  the  clause  for  reclamation  of  fugitives  from  justice.  It  only  applies 
between  State  and  State.  "  A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in  another  State,  shall  on  demand 
of  the  executive  authority  of  the  State  from  which  he  fled,  be  delivered  up,  to  be  re 
moved  to  the  Slate  having  jurisdiction  of  the  crime."  No  Territory  included  here, 
although  State  is  four  times  mentioned,  and  the  evil  to  justice  is  the  same,  whether  the 
fugitive  flies  to  a  land  called  State,  or  called  Territory.  And  why  this  limitation  to 
States  in  a  case  equally  exigent  in  Territories?  Because  the  Constitution  was  not 
made  for  Territories,  and  would  not  authorize  any  action  upon  them. 


40  EXAMINATION   OF  THE 

clause — strongly  in  the  two  instances  just  given,  and  in  those 
previously  given ;  and  still  more  strongly  in  the  article  which 
relates  to  the  establishment  of  courts.  If  there  is  one  branch 
of  the  government  which,  above  all  others,  and  more  than  all 
others,  concerns  the  whole  body  of  the  community,  it  is  the  ju 
dicial  department.  The  administration  of  justice,  civilly  and 
criminally,  may  reach  every  individual  of  a  country.  No  age 
or  sex,  no  rank,  no  condition  of  rich  or  poor,  no  conduct — not 
even  that  of  virtue  and  merit  itself — is  secure  from  litigious  in- 

O 

volvement.  The  first  care  of  the  organic  and  legislating  power 
is  to  give  a  judiciary  to  the  people  ;  and  this  is  what  our  Con 
stitution  has  carefully  done,  as  far  as  our  system  of  government 
required  its  action.  It  has  provided  for  the  trial  of  all  cases 
which  could  invoke  the  Federal  authority — all  between  citizens 
of  different  States,  and  between  citizens  and  foreigners,  and  for 
all  cases  arising  under  the  Federal  laws  ;  all  cases,  in  short, 
which  were  not  left  to  the  State  courts ;  so  that  between  the 
two  systems  the  citizen  should  have  a  remedy  for  every  wrong. 
Did  this  extend  to  the  Territories  ?  Not  at  all !  The  Federal 
judiciary  system  does  not  reach  them,  nor  the  State  systems 
either.  What  then  ?  are  they  without  Courts  ?  By  no  means. 
Congress  supplies  them,  and  in  a  way  to  show  that  they  do  not 
do  it  under  the  Federal  Constitution,  or  in  conformity  to  any 
State  Constitution  known  in  our  America.  They  made  judges 
to  hold  office  for  a  term  of  years,  subject  to  ~be  removed  l>y  the 
President,  like,  any  common  office-holder  ;  and  several  have  been 
so  removed :  and  they  gave  codes  of  law,  both  civil  and  crim 
inal,  not  only  over  the  organized .  Territories,  reduced  to  our 
possession,  but  over  the  wild  territory,  still  in  the  hands  of  the 
Indians.  By  the  decision  of  the  Supreme  Court,  this  would 
seem  to  be  unconstitutional  and  void — a  consequence  which 
seemed  to  sit  hard  on  one  of  the  brother  justices  who  had  acted 
under  these  laws,  and  who,  while  agreeing  in  the  decision  upon 
the  Missouri  Compromise  Act,  did  it  for  a  different  reason  from 
that  which  would  have  condemned  his  own  action.*  Certainly 

*  "  It  is  due  to  myself  to  say,  that  it  is  asking  much  of  a  judge,  who  has  for  nearly 
twenty  years  heen  exercising  jurisdiction,  from  the  western  Missouri  line  to  the  Rocky 
Mountains, -and,  on  this  understanding  of  the  Constitution,  inflicting  the  extreme  pen 
alty  of  death  for  crimes  committed  where  the  direct  legislation  of  Congress  was  the  only 
rule,  to  agree  that  he  had  been  all  the  while  acting  in  mistake,  and  as  an  usurper.'* — 
Mr.  Justice  Catron. 


ETC.  41 

all  tins  legislation  was  incompatible  with  the  Constitution,  but 
no  violation  of  it,  because  the  Constitution  did  not  reach  these 
Territories,  either  civilized  or  savage.  Finally,  and  to  make 
clear  this  point,  the  clause  in  the  original  proposition  to  make 
needful  rules  and  regulations  respecting  the  territory  of  the 
"United  States,  also  proposed  to  authorize  Congress  to  institute 
temporary  governments  in  the  new  States  arising  therein— 
which  was  struck  out,  and  properly ;  the  ordinance  having  al 
ready  made  provision  for  such  governments. 

People  of  the  slave  States  have  a  prejudice  against  that  or 
dinance  as  being  a  northern  measure,  put  upon  them  by  the 
North,  and  from  hostility  to  slavery.  No  conception  could  be 
more  unfounded.  That  ordinance,  in  all  its  forms  and  features, 
in  its  inception,  in  its  consummation,  and  in  the  cause  which 
gave  rise  to  it,  was  a  southern  measure,  given  by  the  South  to 
the  country — known  to  everybody  as  such  at  the  time — and 
provably  so  now.  It  grew  out  of  the  Virginia  cession,  (the 
instant  that  cession  was  made,)  and  the  other  expected  cessions 
from  North  Carolina  and  Georgia.  It  was  these  cessions  which 
gave  territory ;  others  were  little  better  than  barren  quit-claims. 
Virginia  gave  the  Northwest;  Georgia  and  North  Carolina  the 
Southwest";*  and  the  delegates  of  these  States  naturally  and 

*  Sontli  Carolina  believed  at  the  date  of  her  cession,  (August  9,  1787,)  that  she 
was  ceding  a  large  territory  quite  out  to  the  Mississippi ;  but  it  was  afterwards  found 
to  be  small.  Still,  her  deed  of  cession,  though  barren  inland,  is  rich  in  showing  her  good 
will  to  the  Union,  (the  formation  of  which  required  these  cessions  ;)  and  also  in  showing 
her  good  will  to  the  ordinance ;  the  cession  having  been  a  month  after  it,  and  when 
she  expected  her  ceded  Territory  to  be  governed  by  it.  Of  this  cession  one  of  the 
dissenting  judges  says : 

"  But  this  Northwestern  Territory  was  not  the  only  Territory,  the  soil  and  juris 
diction  whereof  were  then  understood  to  have  been  ceded  to  the  United  States.  The 
cession  by  South  Carolina,  made  in  August,  1787,  was  of  '  all  the  territory  included 
within  the  river  Mississippi,  and  a  line  beginning  at  that  part  of  the  said  river  which 
is  intersected  by  t  e  southern  boundary  of  North  Carolina,  and  continuing  along  the 
said  boundary  line  until  it  intersects  the  ridge  or  chain  of  mountains  which  divides 
the  eastern  from  the  western  waters  ;  then  to  be  continued  along  the  top  of  the  said 
ridge  of  mountains,  until  it  intersects  a  line  to  be  drawn  due  West  from  the  head  of 
the  southern  branch  of  the  Tugaloo  River,  to  the  said  mountains  ;  and  thence  to  run  a 
due  West  course  to  the  river  Mississippi.'  It  is  true  that  by  subsequent  explorations  it 
was  ascertained  that  the  source  of  the  Tugaloo  River,  upon  which  the  title  of  South 
Carolina  depended,  was  so  far  to  the  northward,  that  the  transfer  conveyed  only  a 
narrow  slip  of  land,  about  twelve  miles  wide,  lying  on  the  top  of  the  ridge  of  moun 
tains,  and  extending  from  the  northern  boundary  of  Georgia  to  the  southern  boundary 


EXAMINATION   OF   THE 

properly,  in  the  Continental  Congress,  took  the  lead  in  providing 
for  the  government  of  the  districts  which  had  been  their  own, 
and  of  which  they  were  the  donors  to  a  new  sovereign.  The 
Virginia  deed  of  cession  was  delivered  in  March,  1784 ;  Mr. 
Jefferson,  then  a  delegate  in  Congress,  and  one  of  the  signers 
of  the  Virginia  deed,  immediately  moved  for  a  committee  to 
bring  in  a  bill  to  give  a  government  to  the  ceded  territory. 
Leave  was  granted — himself  chairman  of  the  committee.  It 
was  a  proper  occasion  for  the  organizing  mind  of  that  law-giver 
and  statesman,  and  well  did  he  avail  himself  of  it.  In  a  month 
he  reported  his  plan.  It  was  one  of  the  most  perfect  pieces  of 
legislation  that  ever  came  from  the  human  mind — a  code  in 
itself,  and  divided  into  two  parts,  and  each  part  complete  for 
its  object ;  the  first  part,  to  train  up  young  republican  commu 
nities  for  the  exercise  of  sovereign  rights ;  the  second,  to  secure 
to  the  same  communities,  when  ripened  into  States,  the  perma 
nent  blessings  of  civil  and  religious  liberty.  Plato  had  his 
imaginary  Eepublic,  and  Sir  Thomas  More  his  mythical  Utopia, 
for  which  they  framed  imaginary  governments,  founded  in  the 
ories  of  human  perfectability ;  but  Jefferson  had  a  real  field  to 
work  in — a  vast  domain,  fertile  and  beautiful,  extending  from 
the  Alleghanies  to  the  Mississippi,  and  from  the  northern  lakes 
to  the  southern  gulf,  (for  it  was  known  that  North  Carolina  and 
Georgia  would  cede,)  in  which  to  plant  real  communities,  and 
to  build  up  real  republics ;  and  nobly  did  he  do  his  work — how 
nobly  the  States  attest  which  have  grown  up  upon  it.  And  for 
seventy  years  it  stood,  unmarred  and  undefaced,  and  spread  far 

of  North  Carolina.  But  this  was  a  discovery  made  long  after  the  cession,  and  there 
can  be  no  doubt  that  the  State  of  South  Carolina,  in  making  the  cession,  and  the 
Congress  in  accepting  it,  viewed  it  as  a  transfer  to  the  United  States  of  the  soil  and 
jurisdiction  of  an  extensive  and  important  part  of  the  unsettled  territory  ceded  by 
the  Crown  of  Great  Britain  by  the  treaty  of  peace,  though  its  quantity  or  extent 
then  remained  to  be  ascertained." — Mr.  Justice  Curtis. 

To  the  same  effect  spoke  another  of  the  justices — one  from  the  West,  though  not 
exactly  in  the  predicament  of  Mr.  Justice  Catron,  thus  : — "  There  is  a  law  of  Congress 
to  punish  our  citizens  for  crimes  committed  in  districts  of  country  where  there  is  no 
organized  government.  Criminals  are  brought  to  certain  Territories  or  States,  desig 
nated  in  the  law,  for  punishment.  Death  has  been  inflicted  in  Arkansas  and  in  Mis 
souri,  on  individuals,  for  murders  committed  beyond  the  limit  of  any  organized  Terri 
tory  or  State ;  and  no  one  doubts  that  such  a  jurisdiction  was  rightfully  exercised.  If 
there  be  a  right  to  acquire  territory,  there  necessarily  must  be  an  implied  power  to 
govern  it," — Mr.  Justice  McLean. 


SUPREME  COURT'S  DECISION,  ETC.  43 

wider  than  he  had  foreseen — from  the  Mississippi  to  the  Kocky 
Mountains — from  these  to  the  shores  of  the  Pacific.  For,  wherever 
a. Territorial  government  has  been  formed  on  our  continent  in  all 
this  long  time,  and  over  all  this  wide  expanse — from  '87  to  '54— 
'  from  Florida  to  Oregon — the  ordinance  of  '87  has  been  its  basis. 
Even  the  Kanzas-Nebraska  act,  in  all  that  is  good  and  wise  in 
it,  is  copied  from  that  fundamental  law. 

The  ordinance  which  he  (Mr.  Jefferson)  reported,  passed 
the  Congress  of  the  Confederation — became  the  law — was  in 
force  for  three  years,  with  all  the  wise  and  beneficent  provisions 
now  in  it — one  only  excepted — and  until  it  was  repealed  in  1787. 
He  reported  it  with  an  anti-slavery  clause,  the  prohibition  to 
take  effect  after  the  year  1800  :  that  is  to  say,  sixteen  years  after 
the  passing  of  the  ordinance.*  This  clause,  on  the  motion  of 
Mr.  Spaight,  some  time  Governor  of  North  Carolina,  was  struck 
out — the  reason  being  that  it  did  not  contain  a  provision  for  the 
recovery  of  fugitives  from  service.  For  the  rest,  the  ordinance 
passed — went  into  operation — and  remained  in  force  until  super 
seded  by  the  amended,  and,  in  some  degree,  new-modeled  ordi 
nance  of  1787 — a  southern  measure  in  all  its  aspects.  It  was  passed 
in  a  sitting  of  the  Congress  in  which  the  slave  States  present 
were  as  near  as  could  be,  two  to  one ;  to  wit :  five  to  three  ;  and 
where  the  slave  State  delegates  were  exactly  two  to  one  over 
the  free  State  members.  The  power  of  the  slave  States  was 
there :  Virginia,  the  two  Carolinas,  Georgia.  It  was  reported 
from  a  committee  of  which  the  majority  were  from  slave  States, 
and  passed  unanimously — every  State  voting  for  it,  and  every 
delegate  from  every  State,  except  one  from  New  York.f  This 


*  The  clause  was  in  these  words :  "  That  after  the  year  1800  of  the  Christian  era, 
there  shall  be  neither  slavery  nor  involuntary  servitude  in  any  of  the  said  States,  (those 
to  be  formed  out  of  the  North-west  Territory,)  otherwise  than  in  punishment  of  crimes 
whereof  the  party  shall  have  been  convicted  to  have  been  personally  guilty." 

\  The  committee  consisted  of  Messrs.  Carrington  and  R.  H.  Lee,  of  Virginia  ;  Mr. 
J.  Kean,  of  South  Carolina  ;  Mr.  Dane,  of  Massachusetts  ;  Mr.  Smith,  of  New  York. 
The  ordinance  was  reported,  Wednesday,  the  llth  of  July,  read  a  first  time,  and  ordered 
to  a  second  reading  the  next  day ;  read  the  second  time  the  next  day,  and  ordered  to  a 
third  reading  on  the  ensuing  day,  (Friday,  13th ;)  was  read  the  third  time  that  day,  and, 
unanimously  passed.  The  States  present,  and  voting  for  it,  were  :  Massachusetts,  New 
York,  New  Jersey ;  (three  non-slaveholding :)  Delaware,  Virginia,  North  Carolina, 
South  Carolina,  Georgia  ;  (five  slave-holding.)  The  act  of  Congress  for  continuing  it 
in  force  passed  the  House  with  the  same  readiness,  receiving  its  three  readings  in  four 


44: 


EXAMINATION   OF   THE 


amended  ordinance  contained  the  anti-slavery  clause,  with  the 
fugitive  slave  recovery  clause,  (without  which  latter  it  could  not 
have  been  passed ;)  and  it  was  known  at  the  time  that  this 
clause,  and  the  parallel  one  in  the  Constitution,  were  parts  of 
one  system,  necessary  to  the  formation  of  the  Constitution  ;  and 
putting  the  recovery  of  fugitives  from  service  on  the  same  foot 
ing  in  the  Territories  as  in  the  States.  In  the  anti-slavery  clause 
of  this  amended  ordinance,  it  is  to  be  remembered  there  was  a 
wide  departure  from  the  terms  of  Mr.  Jefferson's  provision  of 
1784,  in  this  :  that  by  his  provision  the  abolition  of  slavery  in 
the  Territory  did  not  take  effect  until  sixteen  years  after  the 
passing  of  the  ordinance,  giving  the  owner  time  to  be  indem 
nified  in  labor  for  his  care  and  expense  about  the  young  slaves ; 
but  the  amended  act  abolished  all  ownership  at  once,  without 
reference  to  the  rights  or  interests  of  the  owner.  And  it  is  this 
amended  act,  thus  governing  a  young  community  as  children 
under  age,  and  thus  seizing  private  property  for  an  object  of 
public  policy,  that  the  Congress  of  1789  adopted,  and  made  a 
statute  of  the  United  States ;  and  in  which  Congress,  as  Mr. 
Justice  Curtis  has  taken  the  trouble  to  ascertain,  there  were 
fourteen  members  who  had  been  delegates  in  the  Federal  Con 
vention  which  made  the  Constitution — Mr.  Madison  one  of  them. 
I  must  be  allowed  to  make  a  stand  at  this  point — and  upon 
this  point — and  to  consider  it  as  the  authoritative  exemplifica 
tion,  and  assertion,  of  the  power  of  Congress  over  the  Territories  ; 
going  the  whole  length  of  governing  a  Territory  as  it  pleased, 
and  legislating  upon  slavery  to  the  extent  of  the  instant  and  un- 
compensated  emancipation  of  a  great  number  of  slaves.* 


days  (16th  to  21st  July) — without  objection  or  division,  as  far  as  can  be  seen  from  the 
journals  and  debates.  And  thus,  the  record  history  of  the  day  proves  that  ordinance  to 
be  a  southern  measure — southern  in  all  its  aspects — conception  and  consummation, 
and  the  cause  which  gave  rise  to  it.  Yet  in  the  South  and  West  it  is  generally  regarded 
as  an  invidious  measure,  imposed  upon  the  slave  States  by  the  free — an  error  much  cul 
tivated  of  late,  but  taking  its  rise  in  the  great  debate  on  nullification  between  Mr. 
Webster  and  Mr.  Hayne,  and  in  the  prominent  part  assigned  by  the  former  to  Mr. 
Dane,  of  Massachusetts,  in  the  formation  of  that  ordinance — a  prominence  excusable 
in  oratory,  but  not  justifiable  in  history. 

*  The  freed  were  in  great  numbers,  and  greatly  to  the  loss  and  discontent  of  the 
owners,  which  led  to  many  applications  to  suspend  that  part  of  the  ordinance,  and 
many  legislative  contrivances  in  Indiana  and  Illinois  to  evade  it — resulting  in  many 
lawsuits,  either  at  home  or  in  the  neighboring  slave  States  of  Missouri  and  Kentucky — 


SUPREME  COURT'S  DECISION,  ETC.  45 

It  might  be  supposed  that  this  was  sufficient,  (and  it  cer 
tainly  is  so,)  to  show  that  the  Congress  of  the  Constitution  made 
the  ordinance  of  '87  its  own,  and  must  stand  for  its  author  by 
the  adoption  they  gave  it.  But  I  am  not  yet  done  with  the 
Congress  sanctions  of  this  measure.  Five  times  afterwards  it 
was  sanctioned  by  one  or  other  House  of  Congress — as  far  as  a 
refusal  to  impair  it  can  become  a  sanction.  It  has  been  seen 
that  the  inhabitants  of  Indiana  and  Illinois — (Yincennes,  Kas- 
kaskia,  Cahokia,  Prairie  de  Rocher,  &c.,) — were  discontented  at 
the  loss  of  their  slaves,  and  had  recourse  to  legislative  contri 
vances,  and  judicial  reclamations,  to  evade  the  effect  of  the  ordi 
nance.  They  also  applied  to  Congress  to  suspend,  for  a  limited 
term,  the  anti-slavery  clause  in  favor  of  the  rights  of  the  slave 
holder — all  in  vain — each  refusal  (and  there  were  five  of  them,) 
operating  as  a  congressional  sanction  of  the  measure.  In  one 
of  these  refusals,  the  report  of  the  committee,  drawn  by  Mr. 
Randolph*,  states  the  reasons  for  refusing  to  grant  the  request 
of  the  petitioners,  with  so  much  clearness  and  beauty  of  lan 
guage,  and  with  such  elevated  views  of  national  policy,  and  pays 
so  just  a  tribute  to  the  "  sagacious  and  benevolent"  ordinance, 
and  so  well  pronounces  the  danger  and  inexpedience  of  impair 
ing — a  danger  and  inexpedience  since  fully  realized  in  the  ab 
rogation  of  the  parallel  case  of  the  Missouri  Compromise  Act — 
that  all  may  read  it  with  pleasure  who  either  admire  chaste  writ 
ing,  or  enlightened  statesmanship.  It  is  here  put  in  a  note  for 
their  perusal.* 

the  freed  people  always  preferring  to  try  their  case  in  a  slave  State,  where  they  found 
most  favor.  Of  this,  Mr.  Senator  Breese,  of  Illinois,  well  acquainted  with  what  he  re 
lated,  hore  testimony  in  the  Senate  in  the  debate  on  an  Oregon  hill  in  '48.  Replying 
to  a  member  who  thought  a  free  person  of  color  could  not  get  a  fair  trial  in  a  slave 
State,  he  said  :  "  In  all  his  observations  and  experience  in  cases  of  this  sort,  and  they 
have  not  been  inconsiderable,  he  has  discovered  that  the  courts  of  the  slave  States  have 
been  more  liberal  in  their  adjudications  upon  the  question  of  slavery  than  the  courts  of 
.some  of  the  free  States.  The  courts  of  one  of  them  (Illinois)  had  uniformly  decided 
against  the  right  of  freedom  claimed  by  persons  held  in  bondage  under  a  modified  form 
of  servitude  recognized  by  its  old  Constitution.  In  precisely  similar  cases,  the  courts 
of  Kentucky  and  Missouri,  to  which  States  such  persons  had  been  taken,  decided  in 
favor  of  the  right  to  freedom.  And  it  is  a  remarkable  fact  that  in  all  cases  in  these 
States,  and  he  believed  in  other  slave  States,  where  there  was  any  doubt  about  the 
right  to  hold  the  person  in  slavery,  the  decision  has  been  invariably  in  favor  of  the 
right  to  freedom." 

*  "  The  rapid  population  of  the  State  of  Ohio  sufficiently  evinces,  in  the  opinion  of 
your  committee,  that  the  labor  of  slaves  is  not  necessary  to  promote  the  growth  and 


46  EXAMINATION   OF   THE 

Having  seen  what  the  first  Congress,  and  some  of  its  early 
successors,  thought  of  this  ordinance,  we  will  now  look  into  the 
opinion  of  some  of  the  States — beginning  with  Virginia — a 
State  which  from  its  character  and  weight  in  the  Union,  its 
generation  of  illustrious  men,  and  its  close  connection  with  the 
subject  as  the  great  donor  of  public  lands,  should  be  of  the 
greatest  authority  in  this  case.  Beginning  with  Virginia,  so 
much  bound,  and  so  well  able  to  scrutinize  the  conduct  of  Con 
gress  in  executing  the  high  trust  confided  to  it :  what  did  she 
say  to  this  ordinance  ?  Repulse  it  ?  No  !  But  took  it  to  her 
bosom,  and  embraced  it  with  maternal  affection.  As  early  as 
December  30th,  1T88,  the  Virginia  General  Assembly,  by  a 
solemn  act,  sanctioned  the  ordinance  in  agreeing  to  a  single  al 
teration  which  the  Continental  Congress  asked  to  be  made  in  it, 
and  which  could  not  be  made  without  her  consent.  That  was 
the  sanction  of  Virginia,  the  year  after  the  ordinance  was  made, 
and  the  year  before  it  was  adopted  by  Congress.  She'saw  noth 
ing  in  it  beyond  the  power  of  the  Congress  of  the  Confederation 
to  achieve ;  and  she  was  then  the  sole  party  to  it  on  the  side  of 
the  States,  being  up  to  that  time  the  only  effective  grantor  of 
public  lands.  Next  came  North  Carolina,  another  effective 
donor,  ceding  her  western  territory  in  April,  1790 — the  year 
after  Congress  had  adopted  the  ordinance  ;  and  in  her  deed  of 
cession  made  it  an  article  of  compact,  irrevocable  by  Congress, 
to  grant  to  her  ceded  territory,  (now  the  State  of  Tennessee,) 
the  whole  ordinance  of  '87,  with  the  single  stipulation  that 
Congress  should  not  emancipate  slaves — a  clear  admission  that 
Congress  might  otherwise  do  it.*  Twelve  years  after  came 

settlement  of  colonies  in  that  region.  That  this  labor,  demonstrably  the  dearest  of 
any,  can  only  be  employed  to  advantage  in  the  cultivation  of  products  more  valuable 
than  any  known  to  that  quarter  of  the  United  States ;  that  the  committee  deem  it 
highly  dangerous  and  inexpedient  to  impair  a  provision  wisely  calculated  to  promote 
the  happiness  and  prosperity  of  the  Northwestern  country,  and  to  give  strength  and 
security  to  that  extensive  frontier.  In  the  salutary  operation  of  this  sagacious  and 
benevolent  restraint,  it  is  believed  that  the  inhabitants  will,  at  no  very  distant  day, 
find  ample  remuneration  for  a  temporary  privation  of  labor  and  of  emigration." — 
[Committee  Reports,  1 806.] 

*  Fourthly.  That  the  territory  so  ceded  shall  be  laid  out  and  formed  into  a  State 
or  States,  containing  a  suitable  extent  of  territory,  the  inhabitants  of  which  shall 
enjoy  all  the  privileges,  benefits,  and  advantages  set  forth  in  the  ordinance  of  the  late 

Congress  for  the  government  of  the  Western  Territory  of  the  United  States 

Provided  always,  That  no  regulation  made,  or  to  be  made  by  Congress,  shall  tend  to 
emancipate  slaves. — North  Carolina  Cession  Deed. 


SUPREME   COURT'S   DECISION,    ETC.  4:7 

Georgia — the  last  of  the  effective  ceding  States,  and  in  her  deed 
of  cession  made  it  also  an  irrevocable  article  of  compact,  the 
same  as  North  Carolina  had  done,  that  the  ordinance  should 
be  extended  to  her  ceded  territory — now  the  States  of  Alabama 
and  Mississippi.  The  stipulation  was  in  these  words  :  (and  that 
of  North  Carolina  was  the  same  : ) — 

"  That  the  territory  thus  ceded  shall  form  a  State,  and  be  admitted 
as  such  into  the  Union  as  soon  as  it  shall  contain  60,000  free  inhabi 
tants,  or  at  an  earlier  period,  if  Congress  shall  think  expedient,  on  the 
same  conditions  and  restrictions,  with  the  same  privileges,  and  in  the 
same  manner  provided  in  the  ordinance  of  Congress  of  the  13th  of 
July,  1787,  for  the  government  of  the  Western  Territory  of  the  United 
States,  which  ordinance  shall,  in  all  its  parts,  extend  to  the  territory 
contained  in  the  present  act  of  session,  that  article  only  excepted  which 
forbids  slavery" 

This  was  in  the  year  1802;  and  thus  we  have,  in  a  period  of 
fourteen  years,  the  sanctions  of  the  three  great  ceding  States — 
and  they  Southern  States — to  this  ordinance  ;  Virginia,  as  a 
question  of  expediency,  accepting  the  abolition  of  slavery  on 
the  part  she  ceded;  North  Carolina  and  Georgia,  as  a  like 
question  of  expediency,  retaining  slavery  in  the  parts  ceded  by 
them.  It  is  needless  to  add  that  all  the  other  nominally  ceding 
States,  (South  Carolina  inclusive,)  gave  in  their  sanction  to  the 
ordinance — after  it  was  made,  as  well  through  their  delegates  in 
the  old  Congress  when  it  was  made — and  through  their  repre 
sentatives  in  the  first  Federal  Congress  when  it  was  adopted. 

I  return  to  the  Congress — the  Federal  Congress,  and  give  two 
strong  instances  of  action  on  slavery  in  that  body — South-west 
ern  Territory,  and  original  United  States  Territory  ;  one  in  1798, 
the  other  in  1806.  The  first  was  in  organizing  the  Mississippi 
Territory,  wh'ich  was  done  by  spreading  the  ordinance  of  '87 
over  it ;  the  whole,  with  the  exception  of  the  anti-slavery  clause, 
and  that  clause  having  been  proposed  to  be  applied  to  it  also,  it 
was  resisted  solely  upon  expedient  grounds — not  a  word  being 
uttered  against  the  power  of  Congress  to  do  so.*  But  a  provi- 

*  Mr.  Harper,  of  South  Carolina  :  "  In  the  Northwestern  Territory  the  regulation 
forbidding  slavery  was  a  very  proper  one,  as  the  people  inhabiting  that  part  of  the 
country  were  from  parts  where  slavery  did  not  prevail,  and  they  had,  of  course,  nu 
slaves  among  them ;  but  in  the  Mississippi  Territory  it  would  be  very  improper  to 
make  such  a  regulation,  as  that  species  of  property  already  exists,  and  persons  emigrat- 


48  EXAMINATION    OF  THE 

sion  in  restraint  of  the  growth  of  slavery  there  was  adopted,  (on 
the  motion  of  Mr.  Robert  Goodloe  Harper,  of  South  Carolina,) 
in  forbidding  the  importation  of  slaves  from  any  port  or  place 
without  the  limits  of  the  United  States,  and  making  such  impor 
tation  a  penal  offence,  punishable  by  fine,  and  giving  freedom 
to  the  slave.*  This  was  a  strong  measure,  especially  in  its  pen 
alty,  and  marks  the  difference  between  States  and  Territories, 
being  ten  years  before  Congress  would  have  the  constitutional 
right  to  prohibit  such  importation  into  one  of  the  old  States. 

The  other  instance  was  in  the  year  1806,  when  Mr.  David  E. 
Williams,  then,  and  for  six  years  afterwards,  a  leading  member' 
from  South  Carolina,  moved,  (Feby.  7,)  that  a  committee  be 

ing  there  from  the  Southern  States  would  carry  with  them  property  of  this  kind.  To 
agree  to  such  a  proposition  would,  therefore,  be  a  decree  of  banishment  to  all  the  per 
sons  settled  there,  and  of  exclusion  to  all  those  intending  to  go  there.  He  believed 
it  could  not,  therefore,  be  carried  into  effect,  as  it  struck  at  the  habits  and  customs  of 
the  people."  Mr.  Giles,  of  Virginia:  "Did  not  know  whether  the  tendency  of  the  pro 
posed  measure  was  calculated  to  ameliorate  the  condition  of  the  class  of  men  alluded 
to :  he  believed  not.  On  the  contrary,  it  was  his  opinion  that,  if  the  slaves  of  the 
Southern  States  were  permitted  to  go  into  the  Southern  country,  by  lessening  the  num 
ber  in  these  States,  and  spreading  them  over  a  large  surface  of  country  there  would  be, 
a  greater  probability  of  ameliorating  their  condition."  Mr.  John  Nicholas,  of  Virginia, 
and  Mr.  Rutledge,  of  South  Carolina,  spoke  against  the  expediency  of  the  measure  ; 
and  also  some  members  from  the  free  States — among  them  Mr.  Harrison  Gray  Otis, 
of  Massachusetts,  who  was  glad  to  have  it  in  his  power  to  show  his  indisposition  to  in 
terfere  with  the  Southern  States  in  their  management  of  this  species  of  property. 
"  He  thought  it  was  not  the  business  of  those  who  had  nothing  to  do  with  that  kind 
of  property  to  interfere  with  that  right;  and  he  really  wished  that  the  gentlemen  who 
held  slaves  might  not  be  deprived  of  the  means  of  keeping  them  in  order.  If  the 
amendment  prevailed,  it  would  declare  that  no  slavery  should  exist  in  the  Natchez 
country.  This  would  not  only  be  a  sentence  of  banishment,  but  of  war.  An  immedi 
ate  insurrection  would  take  place,  and  the  inhabitants  would  not  be  suffered  to  retire 
in  peace,  but  would  be  massacred  on  the  spot."  None  of  these  speakers,  nor  anybody 
else  at  that  time,  saw  any  thing  unconstitutional  in  Congress  legislating  upon  slavery 
in  Territories,  and  abolishing  it  in  such  districts  if  it  thought  proper. 

*  Section  7.  "That  from  and  after  the  establishment  of  the  aforesaid  government, 
it  shall  not  be  lawful  for  any  person  or  persons,  to  import  or  bring  into  the  said  Mis 
sissippi  Territory,  from  any  port  or  place  without  the  limits  of  the  United  States,  or 
to  cause  to  be  so  imported  or  brought,  or  knowingly  to  aid  o  r  assist  in  so  importing  or 
bringing  any  slave  or  slaves ;  and  that  every  person  so  offending,  and  being  thereof  con 
victed  before  any  court  within  the  said  Territory,  having  competent  jurisdiction,  shall 
forfeit  and  pay  for  each  and  every  slave  so  imported  or  brought,  the  sum  of  three  hun 
dred  dollars ;  one  moiety  for  the  use  of  the  United  States,  and  the  other  moiety  for 
the  use  of  any  person  or  persons  who  shall  sue  for  the  same  ;  and  that  every  slave,  so 
imported  or  brought,  shall  thereupon  become  entitled  to,  and  receive  his  or  her  free 
dom."  [Act  of  April  7,  1798.] 


SUPREME  COURT'S  DECISION,  ETC.  49 

appointed,  "  to  inquire  wither  any,  and  if  any,  what  additional 
provisions  were  necessary  to  prevent  the  importation  of  slaves 
into  the  Territories  of  the  United  States."  The  committee  was 
granted,  and  the  members  consisted  almost  exclusively  of  slave 
State  representatives,  to  wit :  Mr.  David  R.  Williams,  of  South 
Carolina;  Mr.  John  G.  Jackson,  of  Virginia;  Mr.  Thomas 
Spalding,  of  Georgia ;  Mr.  James  Kelly,  of  Pennsylvania ;  and 
Mr.  William  Blackledge,  of  North  Carolina:  Mr.  Macon,  of 
North  Carolina,  the  speaker,  making  the  appointments.  On  the 
27th  of  March,  the  committee  reported,  and  brought  forward  a 
bill,  "  to  prohibit  the  introduction  of  slaves  into  the  Mississippi 
Territory,  and  the  Territory  of  Orleans ;  "  which  was  read  a 
first,  and  a  second  time,  and  committed  to  a  Committee  of  the 
whole  House ;  but  was  not  reached  during  the  brief  remainder 
of  the  season.  The  proceedings  upon  it,  however,  as  far  as  they 
went,  are  pregnant  with  pertinent  reflection.  The  motion  was 
made  by  a  Southern  member ;  the  committee,  appointed  by  a 
Southern  speaker,  were  four  to  one  from  the  slave  States :  the 
bill  seerns  to  have  been  unanimously  reported ;  it  applied  both 
to  the  original  and  the  newly  acquired  territory,  and  in  all  the 
steps  in  relation  to  it — raising  the  committee,  reading  the  bill, 
referring  it  to  the  Committee  of  the  whole  House  ;  it  was  treated 
as  a  mere  ordinary  piece  of  legislation,  to  the  consideration  of 
which  there  was  no  objection.  Though  a  silent  mode  of  showing 
an  opinion,  there  could  not  have  been  a  clearer  one  in  favor  of 
the  constitutionality  of  the  proceeding,  nor  a  stronger  declara 
tion  that  the  House  saw  no  difference  in  the  power  of  Congress 
over  the  old  and  the  new  territory.* 

In  addition  to  these  States,  and  the  Congress,  there  was  an 
other  authority  which  acknowledged  this  ordinance,  and 
sanctioned  it,  and  provided  for  it — and  with  power  to  do  so ;  and 
that  in  the  critical  moment  of  its  existence  in  the  government's 
transition  from  the  confederate  to  the  Union  State.  That 

*  I  have  caused  search  to  be  made  in  the  files  of  the  House  for  this  bill,  but  without 
effect — it  belonging  to  the  period  when  the  capital  was  burnt  by  the  British,  and  the 
records, before  1814  in  great  part  destroyed.  But  the  precision  of  the  journal  shows  the 
character  of  the  bill, — "  to  prohibit  the  introduction  of  slaves  into  the  Mississippi  Territory, 
and  Territory  of  Orleans."  This  was  a  universal  prohibition,  and  evidently  intended  to 
restrain  the  great  increase  of  slaves  in  those  two  Territories — the  considerate  and 
thinking  men  of  that  day  looking  forward  to  the  time,  when,  in  that  extreme  south, 
the  black  population  might  become  too  numerous  for  the  tranquillity  and  safety  of  the 
white  race. 


50  EXAMINATION    OF   THE 

authority  is  the  Constitution  itself;  a  very  competent  authority, 
and  which  provided  for  the  ordinance  co-incidently  with  its 
creation,  and  in  terms  clear  in  themselves,  and  well  understood 
at  the  time,  though  I  believe  forgotten  now — although  they 
stand  in  the  Constitution,  and  nothing  else  has  been  found  for 
them  to  attach  to.  It  is  in  that  clause  of  Article  YI.  which 
says  :— 

"  All  debts  contracted,  and  all  engagements  entered  into,  before  the 
adoption  of  this  Constitution,  shall  be  as  valid  against  the  United  States 
under  this  Constitution  as  under  the  Confederation." 

Here  are  two  classes  of  obligations  provided  for — "  debts 
contracted,  and  engagements  entered  into;" — and  the  framers  of 
our  Constitution  were  not  the  men  to  provide  for  two  things 
when  they  only  knew  of  one  ;  nor  even  then  to  use  two  words 
when  one  was  enough ;  nor  to  use  any  word  which  had  not  an 
object  of  its  own  to  attach  to.     The  first  class  of  obligations  here 
referred  to — the  debts — readily  commanded  their  appropriate 
attention,  and  wTere  long  enough  a  weight  upon  the  country  to 
be  understood  and  remembered :  but  what  of  the  other — "  en 
gagements  entered  into," — hardly  remembered,  or  understood 
at  all,  and  nothing  to  call  attention  to  it,  or  any  use  for  it 
since  the   7th  day  of  August,  Anno  Domini,  1789 — the  day 
on   which  the  first  Congress  of  the  Constitution  provided  for 
the  engagements  which  the  Congress  of  the  Confederation  had 
entered  into  with  the  land-ceding  States.     The  adoption  of  the 
ordinance  of  '87,  on  that  day,  was  the  performance  of  that  en 
gagement.    The  parties  to  it  were  the  Congress  of  the  Confeder 
ation  and  the  land-ceding  States — all  of  them  ;  for  it  was  known 
at  the  time  that  North  Carolina  and  Georgia  would  follow  the 
example  of  Virginia  in  ceding  theirs.     The  engagement  itself 
was,— -first,  to  dispose  of  the  ceded  land, — secondly,  to  build  up 
political  communities  upon  it.     And  the  Constitution  provided 
for  the  fulfilment  of  both  branches  of  the  engagement,  and  the 
adoption  of  the  ordinance  fulfilled  the  political  part  of  the  engage 
ment, — building  up  political  communities  on  the  Territory ;  and 
the  clause  in  the  Constitution  for  disposing  of  the  Territory,  and 
other  property  of  the  United  States,  followed  by  acts  of  Congress 
to  sell  the  public  land,  fulfilled  the  other.     This  latter  clause, 
with  its  authority  to  make  needful  rules  and  regulations  respect 
ing  the  territory,  &c.,  has  been,  in  latter  times,  generally  under- 


ETC.  51 

stood  as  authorizing  the  political  action  of  Congress  over  the 
Territories.  The  history  of  the  times  shows  this  to  be  an  error, 
so  far  as  giving  a  government  to  the  Territory  is  to  be  under 
stood.  The  clause,  as  first  proposed  by  Mr.  Madison,  included 
temporary  governments  for  the  new  States  arising  on  this  ter 
ritory.  Referred  to  the  Committee  of  Detail,  of  which  Gouver- 
neur  Morris  was  chairman,  it  was  returned  with  u  governments" 
struck  out,  and  adopted  by  the  Convention  as  it  now  stands,*  the 
"  temporary  governments"  omitted,  and  "  unappropriated  lands" 
substituted  by  "territory  or  other  property,"  and  rules  and 
regulations  added — significant  alterations,  and  which  go  to  re 
pulse  the  government  power,  and  to  identify  "  territory  "  as 
meaning  land.  This  makes  it  clear  that  this  needful  rule  and 
regulation  clause  did  not  include  government,  and  that  it  was 
struck  out,  and  properly  because  the  ordinance  had  provided  for 
these  governments — both  Territorial  and  State.  I  know  it  has 
been  much,  and  most  respectably  relied  on,  that  this  clause  gave 
to  Congress  both  the  right  to  govern  these  Territories,  and  to 
dispose  of  the  lands  within  them.  I  think  not,  with  respect  to 
the  government.  As  to  the  disposition  of  the  territory,  and  the 
rules  and  regulations  respecting  it,  I  think  Congress  would  have 
as  much  power  in  making  this  disposition  and  establishing  these 
rules  and  regulations  as  any  other  land-holder ;  and  that  would 
certainly  include,  not  merely  its  sale,  but  the  choice  of  labor, 
free  or  slave,  and  the  entrance  of  persons  upon  it. 

It  is  remarkable  that  this  ordinance  of  an  expiring  Govern 
ment  was  its  last  act,  and  its  adoption  the  first  act  (nearly)  of 
the  nascent  Government,  born  out  of  its  ruins ;  the  former,  a 
circumstance  which  has  been  dwelt  upon  (of  late)  to  the  disad 
vantage  of  the  expiring  Government,  as  an  act  of  authority  when 

*  The  entries  in  relation  to  this  clause,  stand  thus  in  Mr.  Madison's  debates  in  the 
Federal  Convention : — 

"  Mr  Madison  submitted,  in  order  to  be  referred  to  the  Committee  of  Detail,  the 
following  powers,  as  proper  to  be  added  to  those  of  the  general  legislature. 

"  To  dispose  of  the  unappropriated  lands  of  the  United  States. 

"  To  institute  temporary  governments  in  the  new  States  arising  therein." 
These  propositions  were  referred  to  the  Committee  of  Detail,  August  18,  1787. 
Mr.  Gouverneur  Morris  moved  to  take  up  the  following : — 

"  The  legislature  shall  have  power  to  dispose  of,  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  belonging  to  the  United  States ; 
and  nothing  in  this  Constitution  contained  shall  be  so  construed  as  to  prejudice  any 
claims,  either  of  the  United  States,  or  any  particular  States."  [August  30.] 


52  EXAMINATION    OF    THE 

power  was  departing,  but  which  history  classes  with  the  pru 
dent  foresight  of  a  wise  man  dying,  and  putting  his  affairs  in 
order  for  the  benefit  of  his  successor ;  for  such  was  the  conduct 
of  the  last  Congress  of  the  expiring  Confederation.  It  knew  it 
was  expiring ;  it  knew  it  was  to  be  succeeded  by  a  new  Govern 
ment  ;  it  knew  it  had  entered  into  engagements  which  others 
would  have  to  fulfil ;  and  it  wisely  and  honestly  put  these  engage 
ments  into  perfect  form,  in  the  revised  and  amended  ordinance, 
that  its  successor  should  have  nothing  to  do  but  adopt  its  work. 
And  it  should  never  be  forgotten  that  this  ordinance  wras  the 
work  of  the  southern  land-ceding  States,  of  Virginia,  the  two 
Carolinas,  and  Georgia,  whose  power  did  it.  As  to  its  adoption 
by  the  first  federal  Congress,  it  seems  to  have  been  unanimously 
done;  the  journals  and  debates  showing  no  division ;  and  that 
Congress  knew  what  it  was  about  was  very  probable,  both  from 
the  character  of  the  members,  their  familiarity  with  the  events 
of  the  day,  and  the  fact  that  fourteen  of  them  had  been  mem 
bers  of  the  Convention  which  framed  the  Constitution. 

Such  is  the  testimony  of  States,  of  Congresses,  and  of  the 
Constitution  in  favor  of  this  ordinance  ;  but  we  have  another  of 
a  different  character,  partaking  of  the  judicial,  as  the  others  do 
of  the  legislative  authority,  and  hardly  less  entitled  to  respect. 
I  speak  of  St.  George  Tucker,  (the  father,)  some  time  one  of  the 
judges  of  the  General  Court  of  Virginia,  professor  of  law  in  the 
ancient  University  of  William  and  Mary,  and  editor  of  an 
edition  of  Sir  William  Blackstone's  Commentaries,  with  notes 
and  references  to  American  law,  to  assist  the  American  law- 
student.  In  one  of  these  notes,  (Appendix  D.,  vol.  1.)  written 
some  fifty-five  years  ago,  when  the  history  of  the  formation  of 
this  Government  was  part  of  his  daily  current  knowledge,  he 
thus  speaks  of  this  ordinance,  and  the  engagement  clause  in  the 
Constitution  : — 

"  Congress,  under  the  former  Confederation,  passed  an  ordinance, 
July  13th,  1787,  for  the  government  of  the  territory  of  the  United 
States  north-west  of  the  Ohio,  which  contained,  among  other  things,  six 
articles,  which  were  to  be  considered  as  articles  of  compact  between  the 
original  States  and  the  people  and  States  of  the  said  territory,  and  to 
remain  unalterable,  unless  by  common  consent.  These  articles  appear 
to  have  been  confirmed  by  the  sixth  article  of  the  Constitution,  which 
declares  that  all  debts  contracted,  and  all  engagements  entered  into 


SUPREME  COURT'S  DECISION,  ETC.  53 

before  the  adoption  of  the  Constitution,  shall  be  as  valid  against  the 
United  States,  under  the  Constitution  as  under  the  Confederation." 

Such  is  the  contemporary  evidence  of  an  eminent  judge, 
writing  for  the  information  of  the  young  generation,  free  from 
question  or  excitement,  and  in  daily  intercourse  with,  the  men 
who  founded  the  Government.  To  him  it  was  all  clear  that  the 
ordinance  was  made  to  fulfil  the  engagement  to  the  land-ceding 
States,  and  that  the  sixth  article  in  the  Constitution  was  put  in 
to  devolve  the  fulfilment  upon  the  new  Government. 

It  is  observable  that  the  Supreme  Court,  in  its  opinion,  takes 
no  notice  of  Judge  Tucker's  application  of  this  engagement 
clause  in  the  Constitution,  and  without  applying  it  in  the  same 
way,  is  somewhat  indistinct  in  its  own  application  of  it,  result 
ing,  possibly,  from  having  read  the  clause  in  three  parts  instead 
of  two ;  "  debts,  contracts,  and  engagements  entered  into,"  in 
stead  of  "  debts  contracted,  and  engagements  entered  into."  It 
seems,  in  fact,  merely  referred  to  to  illustrate,  by  analogy,  the 
meaning  of  the  clause  in  relation  to  the  territory  and  other 
property  of  the  United  States.*  As  providing  for  the  ordinance, 

*  "  The  necessity  of  this  special  provision  in  relation  to  property  and  the  rights  of 
property  held  in  common  by  the  confederated  States,  is  illustrated  by  the  first  clause 
of  the  sixth  article.  This  clause  provides  that  '  all  debts,  contracts,  and  engage 
ments  entered  into  before  the  adoption  of  this  Constitution,  shall  be  as  valid  against 
the  United  States  under  this  Government  as  under  the  Confederation.'  This  provision, 
like  the  one  under  consideration,  was  indispensable  if  the  new  Constitution  was  adopted. 
The  new  Government  was  not  a  mere  change  in  a  dynasty,  or  in  a  form  of  government, 
leaving  the  nation  or  sovereignty  the  same,  and  clothed  with  all  the  rights,  and  bound 
by  all  the  obligations  of  the  preceding  one.  But,  when  the  present  United  States 
came  into  existence  under  the  new  Government,  it  was  a  new  political  body,  a  new 
nation,  then  for  the  first  time  taking  its  place  in  the  family  of  nations.  It  took 
nothing  by  succession  from  the  Confederation.  It  had  no  right,  as  its  successor,  to  any 
property  or  rights  of  property  which  it  had  acquired,  and  was  not  liable  for  any  of  its 
obligations.  It  was  evidently  viewed  in  this  light  by  the  framers  of  the  Constitution. 
And  as  the  several  States  would  cease  to  exist  in  their  former  confederated  character 
upon  the  adoption  of  the  Constitution,  and  could  not,  in  that  character,  again  assemble 
together,  special  provisions  were  indispensable  to  transfer  to  the  new  Government  the 
property  and  rights  which  at  that  time  they  held  in  common ;  and  at  the  same  time 
to  authorize  it  to  lay  taxes  and  appropriate  money  to  pay  the  common  debt  which  they 
had  contracted ;  and  this  power  could  only  be  given  to  it  by  special  provisions  in  the 
Constitution.  The  clause  in  relation  to  the  territory  and  other  property  of  the  United 
States  provided  for  the  first,  and  the  clause  last  quoted  provided  for  the  other." — 
Opinion  of  tJie  Court. 


54  EXAMINATION  OF   THE 

it  does  not  seem  to  be  referred  to  at  all.  And,  it  may  be,  that 
admitting  the  force  of  the  ordinance  in  the  old  territories,  the 
Court  saw  no  necessity  to  fortify  it.  But  that  admission  is  so 
hedged  in  with  qualifications,  limiting  it  to  the  old  territory, 
and  so  hampered  with  dependence  upon  the  compacts,  and  so 
stinted  in  its  reduction  to  the  combined  power  of  Congress  and 
the  States,  that  I  have  deemed  it  just  to  trace  it  through  its 
history,  and  place  it  upon  its  proper  foundation  :  1.  The  broad 
and  solid  foundation  of  sovereignty.  2.  Proprietorship.  3.  The 
Constitution.  4.  The  adopting  act  of  Congress.  5.  The  sanc 
tion  of  many  Congresses,  and  of  all  the  land-ceding  States.  And 
thus  fortified,  it  becomes  the  strongest  measure  over  persons 
and  property,  in  Territories,  which  the  history  of  our  legislature 
affords;  as  much  stronger  than  the  Missouri  Compromise  Act 
as  the  abolition  of  existing  slavery,  without  regard  to  proprie 
tary  rights,  is  stronger  than  the  prospective  prohibition  of 
slavery  in  places  where  it  never  existed. 


SECOND  STAGE  OF  THE  EXAMINATION  :  POWER  OF 
CONGRESS  OVEK  THE  NEW  TERRITORIES. 

II.  In  the  acquisition  of  Louisiana  came  the  first  new  terri 
tory  to  the  United  States,  and  over  it  Congress  exercised  the 
same  power  that  it  had  done  over  the  original  territory.  It  saw 
no  difference  between  the  old  and  new,  as  the  Court  has  done, 
and  governed  both,  independently  of  the  Constitution,  and  in 
compatibly  with  it,  and  by  virtue  of  the  same  right — Sover 
eignty  and  Proprietorship  !  the  right  converted  into  a  duty, 
and  only  limited  by  the  terms  of  the  grant  in  each  case. 

Louisiana  was  acquired  in  the  spring  of  1803  :  an  extra  ses 
sion  of  Congress  was  called  to  ratify  the  treaty  of  acquisition, 
and  to  provide  for  the  occupation  and  government  of  the  new 
possession.  The  called  session  met  in  October,  and  immediate 
ly  passed  an  act  providing  for  the  two  objects — the  first  section 
of  the  act  putting  the  armed  force,  military  and  naval,  at  the 
disposition  of  the  President  to  enable  him  to  receive  the  pos 
session  ;  the  second,  providing  for  a  temporary  government :  and 
which  was  in  these  words  : — 


ETC.  55 

"  That  until  the  expiration  of  the  present  session  of  Congress,  unless 
provision  for  the  temporary  government  of  the  said  territories  be  sooner 
made  by  Congress,  all  the  military,  civil  and  judicial  powers  exercised 
by  the  officers  of  the  existing  government  of  the  same,  shall  be  vested 
in  such  persons,  and  shall  be  exercised  in  such  manner,  as  the  President 
of  the  United  States  shall  direct  for  maintaining  and  protecting  the  in 
habitants  of  Louisiana  in  the  free  enjoyment  of  their  liberty,  property 
and  religion." 

This  bill  emanated  from  a  select  committee,  of  which  Mr. 
John  Randolph  was  chairman  ;  Messrs.  John  Rhea,  of  Tennes 
see,  William  Hoge,  of  Pennsylvania,  Gaylord  Griswold,  of 
New  York,  and  George  Michael  Bedinger,  of  Kentucky,  were 
members  :  but  those  who'  are  familiar  with  the  inside  working 
of  the  legislative  machinery,  know  very  well  that  bills  of  this 
particular  kind — to  carry  into  effect  a  measure  of  the  Govern 
ment,  originating  in  a  treaty  with  a  foreign  power — always  come 
down  from  the  department  of  State,  supervised  by  the  Presi 
dent  :  and  in  this  instance,  the  special  message  of  the  President 
which  brought  the  subject  before  Congress,  and  asked  for  "  tem 
porary  provision  "  for  the  government  of  the  Territory,  the  pre 
sumption  of  its  origin  in  the  State  Department  assumes  the 
character  of  certainty.  It  was  a  startling  bill — continuing  the 
existing  Spanish  government — putting  the  President  in  the 
place  of  the  King  of  Spain — putting  all  the  territorial  officers 
in  the  place  of  the  King's  officers — and  placing  the  appoint 
ment  of  all  these  officers  in  the  President  alone,  without  refer 
ence  to  the  Senate.  Nothing  could  be  more  incompatible  with 
our  Constitution  than  such  a  government — a  mere  emanation 
of  Spanish  despotism,  in  which  all  powers,  civil  and  military, 
legislative,  executive  and  judicial,  wrere  in  the  Intendant  Gene 
ral  representing  the  King  ;  and  where  the  people,  far  from  pos 
sessing  political  rights,  were  punishable  arbitrarily  for  presum 
ing  to  meddle  with  political  subjects.  Not  only  was  the  nature 
of  the  Government  thus  continued  wholly  incompatible  with 
our  Constitution,  but  its  machinery  and  appointment  of  officers 
were  equally  so.  They  were  to  be  appointed  by  the  President 
without  the  advice  and  consent  of  the  Senate  :  and  certainly  the 
American  Governor  who  was  to  replace  the  Spanish  Intendant 
General  in  that  important  province,  and  the  judges  who  were 
to  replace  the  royal  Cabildo  in  the  city  of  New  Orleans,  were 


56  EXAMINATION    OF   THE 

not  the  "  inferior  officers  "  whose  appointment,  by  the  Constitu 
tion,  would  vest  in  the  President  alone.  In  no  Territory  organ 
ized  under  the  ordinance  of  1787,  even  the  most  inconsiderable, 
were  these  officers  so  considered.  Here  then  was  a  double  in 
compatibility  with  our  Constitution—^^,  in  the  Government 
itself  ;  secondly,  in  the  appointment  of  the  officers  to  adminis 
ter  it :  and  it  is  not  to  be  supposed  that  such  enactments,  so 
startling  in  themselves,  and  so  novel  in  a  Eepublic  of  Anglo- 
Saxon  origin,  could  pass  without  observation — without  scrutiny 
—from  that  jealous  Republican  party  which  had  just  come  into 
power,  and  come  in  upon  the  cry  of  saving  the  Constitution  at 
the  last  gasp.  And  still  less  to  be  supposed  that  it  would  escape 
the  notice  of  the  eminent  Federal  men  in  Congress,  no  friends 
to  the  acquisition  of  Louisiana,  and  willing  to  hold  the  Eepub- 
lican  members  to  the  test  of  their  liberty-loving  principles. 
The  unobserved  passage  of  such  an  act,  in  such  a  state  of  par 
ties,  was  not  to  be  expected :  and  unobserved  it  was  not,  nor 
unscrutinized  either.  It  roused  attention  when  it  was  read. 
It  was  canvassed  from  the  beginning,  and  through  all  its  stages, 
and  on  the  double  ground  mentioned.  Mr.  Eoger  Griswold,  of 
Connecticut,  (Federal,)  moved  to  strike  out  the  whole  section, 
saying  :  "  He  wished  to  know  what  were  the  civil,  military,  and 
judicial  functions  exercised  by  the  Spanish  officers;  and  ex 
pressed  the  belief  that  some  of  them  were  inconsistent  with 
the  Constitution  of  the  United  States  ;  and  referred  to  the  writ 
of  Jialeas  corpus,  which  could  not  be  in  force  under  the  act,  and 
which  Congress  could  only  constitutionally  suspend  in  cases  of 
rebellion  or  invasion."  Mr.  James  Elliott,  of  Vermont,  (Ee- 
publican,)  seconded  the  motion  of  Mr.  Griswold,  saying :  "  He 
would  never  consent  to  delegate,  for  a  single  moment,  such  ex 
tensive  powers  to  the  President,  even  over  a  Territory  :  such  a 
delegation  of  power  was  unconstitutional."  Mr.  Dana,  of  Con 
necticut,  (Federal,)  expressed  himself  thus:  "The  President 
may,  under  this  authority,  establish  the  whole  code  of  Spanish 
laws,  however  contrary  to  our  own,  appoint  whomsoever  he 
pleases  as  governor  and  judges,  and  remove  them  accord 
ing  to  his  pleasure  ;  thus  uniting  in  himself  all  power— legisla 
tive,  judicial,  and  executive." 

This  was  bringing  out  objections  to  the  constitutionality  of 
the  bill,  sufficiently  clearly  and  strangely  to  merit  an  answer 


SUPREME  COURT'S  DECISION,  ETC.  57 

from  its  friends — and  received  it,  reminding  the  objectors  that 
this  was  a  Territory — not  a  State  ;  and  that  the  Constitution  had 
nothing  to  do  with  it.  Thus,  Mr.  Rodney  (Cesar  Augustus)  of 
Delaware,  (Republican  :)  "There  is  a  wide  distinction  between 
States  and  Territories,  and  the  Constitution  appears  clearly  to 
indicate  it.  In  the  Territories  of  the  United  States,  under  the 
ordinance  of  Congress,  the  Governor  and  judges  have  a  right  to 
make  laws.  Could  this  be  done  in  a  State  ?  I  presume  not.  It 
shows  that  Congress  have  a  power  in  the  Territories  which  they 
cannot  exercise  in  the  States,  and  that  the  limitations  of  power, 
found  in  the  Constitution,  are  applicable  to  States  and  not  to 
Territories." 

Mr.  Griswold  replied,  and  more  earnestly  and  pointedly, 
saying  :  "  By  the  section  under  consideration,  power  is  given 
to  the  President  to  appoint  all  the  officers  in  the  province,  from 
the  governor  clown  to  the  lowest  officer.  Gentlemen  will  not 
say  that  the  office  of  governor,  or  judge,  is  one  of  the  inferior 
offices  contemplated  by  the  Constitution.  They  had  never  been 
so  considered.  In  all  the  arrangements  for  the  territorial  gov 
ernments  the  sanction  of  the  Senate  had  been  required  for  the 
governors,  judges,  secretaries,  etc. ;  whereas,  in  this  instance, 
the  President  is  clothed  with  power  to  appoint  all  officers  in  the 
Territory.  He  apprehended  that  such  a  power  could  not  be 
constitutionally  given." — This  brought  up  Mr.  Randolph,  who 
compressed  his  argument  into  the  single  word,  sovereignty, 
saying :  "  Gentlemen  will  see  the  necessity  of  the  United  States 
taking  possession  of  this  country  in  the  capacity  of  sovereigns, in 
the  same  extent  as  that  of  the  existing  government  of  the  prov 
ince." — Mr.  Joseph  H.  Nicholson,  of  Maryland,  (Republican,) 
spoke  more  at  large.  He  said :  "  Is  there  any  difference  be 
tween  this  section  and  the  provisions  of  the  ordinance  of  1787, 
which  relates  to  territorial  governments  ?  By  that  ordinance, 
and  I  have  never  heard  its  constitutionality  questioned,  all  the 
civil,  military,  and  judicial  powers  are  vested  in  such  persons  as 
the  President  may  appoint.  Judicial  powers  are  vested  in  per 
sons  appointed  by  the  President :  so  with  respect  to  the  civil 
and  military  powers :  and  the  legislative  power  is  vested  in  a 
body,  part  of  which  is  appointed  by  the  President.  I  am,  with 
other  gentlemen,  unable  to  say  what  are  the  nature  and  extent 
of  the  powers  exercised  by  the  present  government  of  Louisiana ; 


58 


EXAMINATION   OF   THE 


but  we  must  authorize  the  taking  possession  of  the  country  :  and 
we  must,  in  such  an  event,  authorize  the  exercise  of  these  pow 
ers."— Mr.  Mitchell,  (Dr.  Samuel  II.)  of  New  York,  (Republi 
can:)    "The  third  section  of  the  fourth  article  of  the  Constitu 
tion  contemplates  that  territory  and  other  property  may  belong 
to  the  United   States.     By  a  treaty  with  France,  the  United 
States  has  lately  acquired  title  to  a  new  Territory,  with  various 
kinds  of  property  on  it,  or  annexed  to  it.     By  the  same  section 
of  the  Constitution,  Congress  is  clothed  with  power  to  dispose  of 
such  territory  and  property,  and  to  make  all  needful  rules  and 
regulations  respecting  it.     This  is  as  fair  an  exercise  of  constitu 
tional  power  as  that  by  which  we  assemble,  and  hold  our  seats 
in  this  house.''— Mr.  Joseph  B.  Varnum,  of  Massachusetts,  (Re 
publican,)  and  sometime  speaker  of  the  House  :  "  We  are  told 
we  are  about  to  authorize  the  exercise  of  power  over  the  ceded 
territory  not  authorized  by  the  Constitution  :  he  would  ask  if  the 
Constitution  was  to  take  effect  as  soon  as  the  United  States  took 
possession  of  the  Territory  ?     On  this  point  he  would  refer  to 
the  treaty.     It  provides  for  the  incorporation  of  the  inhabitants 
into  the  Union  :  but  when  ?    As  soon  as  it  can  be  done  according 
to  the   principles   of  the  Federal  Constitution.     In   the  mean 
time  they  are  to  be  protected  in  the  enjoyment  of  their  liberty 
and   property,  and  the  religion  they  profess.     In  what  mean 
time  ?     There  is  a  time  when  the  country  is  acquired,  and  a 
time  when  it  will  be  admitted  into  the  Union.     Between  these 
periods — in  the  mean  time — the  people  are  to  enjoy  their  lib 
erty,  property,    and  religion."— Dr.  Eustis,  of  Massachusetts, 
(Republican,)   and    sometime    Secretary    at  War:    "  Though 
called  upon  to  take  immediate  possession  of  this  Territory,  you 
are  told  you  are  not  to  govern  it.     This  is  the  amount  of  the 
argument   of  gentlemen ;   for  if  you  cannot  govern   it  in  this 
way,  you  can  govern  it  in  no  other.     He  saw  no  other  alter 
native  :  there  was  no  possibility  of  any  other  course.     He  was, 
therefore,  happy  to  see  nothing  in  the  Constitution  which  for 
bade  pursuing  it.     On  the  contrary,  it  arose  imperiously  from 
the  acquisition." — Mr.  John  Smilie,  of  Pennsylvania,  (Repub 
lican  :)  "  He  agreed  in  opinion  with  the  gentleman  from  Mas 
sachusetts,  (Mr.  Yarnum,)  that  the  Constitution  did  not  extend 
to  this  Territory  any  further  than  they  were  bound  by  the  com 
pact  between  the  ceding  power  and  the  people.     On  this  prin- 


SUPREME  COURT'S  DECISION,  ETC.  59 

ciple  they  had  a  right,  viewing  it  in  the  light  of  a  colony,  to 
give  it  such  a  government  as  the  Government  of  the  United 
States  might  think  proper,  without  thereby  violating  the  Con 
stitution.  When  incorporated  into  the  Union,  the  inhabitants 
must  enjoy  all  the  rights  of  citizens.  He  would  thank  gentle 
men  to  show  him  any  part  of  the  Constitution  which  extends  either 
legislative,  executive,  or  judicial  power  over  this  territory.  If 
none  such  could  be  shown,  it  must  rest  with  the  discretion  of  the 
Government  to  give  it  such  a  system  as  might  seem  best  for  it." 

On  these  objections  and  answers  to  the  bill,  the  vote  was 
taken  to  strike  out  the  second  section — the  one  objected  to — 
and  the  motion  almost  unanimously  rejected  ;  and  the  question 
being  taken  011  the  passage  of  the  bill,  it  passed  in  the  affirma 
tive — 89  yeas  to  23  nays :  the  negatives  consisting  almost  en 
tirely  of  those  Federal  members  who,  having  opposed  the  ac 
quisition  of  Louisiana,  worked  out  their  principle  to  its  legiti 
mate  conclusion,  in  refusing  to  legislate  for  it.  And  thus  the 
act  passed  the  House  as  good  as  unanimously. 

The  bill  had  come  from  the  Senate,  and  there  being  but  little 
reporting  of  debates  in  that  body  at  that  time,  and  nothing  re 
ported  on  this  bill,  we  are  remitted  to  the  journal  to  see  the 
mere  proceedings  which  took  place  upon  it :  and  these  are  suffi 
ciently  full  and  significant  to  show  the  sentiments  of  that  body 
upon  it.  From  the  journal  of  these  proceedings  it  appears  that 
on  the  21st  of  October — (it  was  the  session  of  1803-'4) — Mr. 
Jefferson,  by  special  message,  informed  the  Senate  as  well  as 
the  House,  that  the  Senate  had  ratified  the  Louisiana  treaty, 
and  asked  the  legislative  aid  from  Congress  which  would  enable 
him  to  take  possession  of  the  province  and  govern  it  tempora 
rily.  The  same  day  Mr.  John  Breckenridge,  of  Kentucky,* 
gave  notice  that  he  would  ask  the  leave  of  the  Senate  to  bring 
in  a  bill  to  accomplish  the  objects  of  the  message  : — doubtless 
done  in  concert  with  Mr.  Jefferson,  of  whom  he  was  a  leading 
friend.  Leave  was  given,  and  the  bill  brought  in  the  next 
day,  and  was  the  same  that  passed  the  House,  with  an  amend 
ment  limiting  its  duration  to  the  end  of  the  session.  It  was 
read  a  first  time,  for  information,  the  day  it  was  brought  in— 
the  second  time  for  reference,  or  consideration,  the  next  day— 

*  Grandfather  of  the  present  Vice  President. 


60  EXAMINATION     OF    THE 

and  was  referred  to  a  select  committee,  (Mr.  Breckenridge,  Mr. 
Jonathan  Dayton,  of  New  Jersey,  and  Mr.  Abram  Baldwin,  of 
Georgia,)  to  consider  and  report  upon.  On  the  day  after,  (Oct. 
23d,)  Mr.  Breckenridge  reported  back  the  bill  without  any  pro 
posed  alteration ;  the  next  day  it  was  read  the  third  time,  and 
passed.  ~No  motion  was  made  to  strike  out  the  second  section, 
and  the  vote  on  its  passage  was  nearly  unanimous,*  only  six 
members  voting  against  it,  and  they  the  members  who  opposed 
the  treaty,  and  would  no  nothing  to  carry  it  into  effect.  The 
bill  thus  passed  received  the  approbation  of  the  President  the 
same  day  it  was  laid  before  him  ;  and  to  those  who  are  acquaint 
ed  with  the  working  of  the  legislative  machinery,  it  may  well 
be  believed  that  the  whole  proceeding  was  in  concert  with  the 
administration — that  Mr.  Jefferson  picked  out  Mr.  Brecken 
ridge  to  bring  in  the  bill — that  its  principles  were  settled  in 
cabinet  meeting — that  Mr.  Madison  drew  it :  and  that  every 
question  in  relation  to  it  was  duly  considered  before  it  was  sub 
mitted  to  final  action.  And  thus.,  this  first  instance  of  Congress 
legislation  upon  newly  acquired  territory  was  as  high  an  in 
stance  of  disregard  of  the  Constitution  as  the  imagination  could 
conceive — being  nothing  less  than  the  continuation  of  the  Span 
ish  regal  despotism — the  President  taking  the  place  of  the  King 
of  Spain ;  Governor  Claiborne,f  the  place  of  the  Intendant 
General,  Morales ;  the  laws  of  Spain  remaining  in  force  and 
administered  by  American  judges  :  and  the  whole  provincial 
administration  going  on  as  if  no  change  of  government  had 
taken  place.  It  was  a  royal  despotic  Government,f  and  every 

*  The  yeas  were :  Messrs.  Joseph  Anderson,  of  Tennessee ;  Theodorus  Bailey,  of 
New  York  ;  Abraham  Baldwin,  of  Georgia ;  John  Breckenridge,  of  Kentucky ;  John 
Brown,  of  Kentucky ;  Pierce  Butler,  of  South  Carolina  ;  William  Cooke,  of  Tennessee  ; 
John  Condit,  of  New  Jersey ;  Jonathan  Dayton,  of  New  Jersey ;  Christopher  Ellery, 
of  Rhode  Island ;  Jesse  Franklin,  of  North  Carolina ;  James  Jackson,  of  Georgia ; 
George  Logan,  of  Pennsylvania ;  Samuel  Maclay,  of  Pennsylvania ;  Wilson  Carey 
Nicholas,  of  Virginia  ;  John  Taylor,  of  Virginia,  (usually  discriminated  as  John  Tay 
lor,  of  Caroline  ;)  Samuel  J.  Potter,  of  Rhode  Island  ;  Israel  Smith,  of  Vermont ;  John 
Smith,  of  Ohio  ;  Samuel  Smith,  of  Maryland  ;  David  Stone,  of  North  Carolina  ;  Wil 
liam  Hill  Wells,  of  Delaware ;  Samuel  White,  of  Delaware ;  Thomas  Worthington, 
of  Ohio ;  Robert  Wright,  of  Maryland. 

f  William  Charles  Cole  Claiborne,  native  of  Virginia,  sometime  representative  in 
Congress  from  Tennessee,  and  at  that  time  territorial  governor  of  Mississippi.  He 
was  a  very  proper  man  to  be  intrusted  with  the  responsible  and  delicate  duty  to 
which  he  was  appointed — urbane  in  manners,  discreet  in  judgment,  conciliatory  in 


SUPREME   COURT'S   DECISION,   ETC.  61 

body  knew  it ;  and  no  one  thought  of  testing  it  by  the  Consti 
tution  (some  few  new  members  in  the  House  excepted)  than  by 
the  Koran. 

This  was  the  character  of  the  first  American  territorial  gov 
ernment  of  Louisiana — a  continuation  of  Spanish  despotism — 
and  established  by  such  men  as  then  constituted  the  Federal 
Government — and  who  have  had  no  superiors,  before  or  since. 
Many  of  them  had  assisted  in  making  the  Constitution  :  all  were 
under  oath  to  support  it :  and  all,  (or  as  good  as  all,)  voted  for 
a  bill  which  is  contrary  to  that  Constitution  from  beginning  to 
end.  And  now,  by  what  authority  did  they  so  vote  ?  and  the 
answer  is,  in  the  single  phrase  pronounced  by  Mr.  Randolph — 
SOVEREIGNTY  ! 

High  as  was  this  instance  of  Congressional  absolute  power 
over  territories,  it  was  succeeded  at  the  same  session  by  another, 
not  so  striking  in  its  general  character,  but  more  so  in  some  of 
its  features,  and  very  exemplificative  of  the  fact  that  Congress 
paid  no  more  attention  to  the  Constitution  in  governing  new 
Territories  than  in  governing  the  old  ones.  The  continuation  of 
the  Spanish  monarchical  government  was  an  expedient  for  the 
occasion,  temporary,  and  only  intended  to  remain  until  a  more 
suitable  form  of  government  could  be  matured;  and  no  time 
was  lost  in  carrying  that  intention  into  effect.  As  early  as  No 
vember  28th,  Mr.  Breckenridge,  always  a  coadjutor  of  Mr.  Jef 
ferson,  submitted  a  resolution  in  the  Senate  to  raise  a  committee 
to  prepare  a  form  of  government  for  Louisiana.  The  motion 
was  ordered  to  lie  for  consideration.  On  the  5th  of  December 
it  was  considered  and  adopted,  and  Messrs.  John  Breckenridge, 
Robert  Wright,  of  Maryland ;  General  James  Jackson,  of 
Georgia ;  Abraham  Baldwin,  of  Georgia ;  and  John  Quincy 
Adams,  were  the  select  committee  to  which  the  motion  was  re 
ferred.  On  the  30th  December  the  bill  was  reported,  and  read 
a  first  time,  and  ordered  to  a  second  reading ;  on  the  16th  of 
January,  read  a  second  time,  and  being  open  to  amendment, 
was  taken  up  for  discussion.  On  the  18th  of  February  it  had 

temper ;  and  gave  so  much  satisfaction,  that  he  was  continued  Governor  during  the 
eight  years  that  the  territorial  condition  remained,  and  was  elected  first  Governor  of 
the  State,  and  afterwards  Senator  in  Congress :  but  died  before  taking  his  seat. 

*  The  first  territorial  government  of  Louisiana  was  an  imperial  one,  founded  upon 
a  French  or  Spanish  model. — Mr.  Justice  Campbell. 


62 


EXAMINATION    OF   THE 


received  its  final  consideration,  and  was  passed  by  a  vote  al 
most  unanimous,  (only  the  usual  six  negatives  opposed  to  the 
treaty,)  and,  so  far  as  the  provisions  of  the  bill  were  concerned, 
quite  so ;  for  on  motions  to  amend,  or  strike  out,  those  who 
voted  against  the  passage  of  the  bill  voted  for  its  strongest  pro 
visions  separately. 

I  am  thus  particular  with  these  initiatory  steps  to  show  the 
care  and  caution  with  which  our  Congress  proceeded  in  that 
early  day,  its  close  observance  of  all  the  rules  which  experience 
had  devised  for  due  deliberation  in  conducting  business,  and 
especially  to  show  that  all  these  rules  were  scrupulously  observed 
in  this  case,  and  a  most  able  committee  appointed  to  bring  in 
the  bill. 

The  bill  thus  matured,  and  passed,  and  sent  to  the  House, 
had  taken  the  ordinance  of  1787  for  its  basis,  but  with  devi 
ations  required  by  the  geographical  position  of  the  country,  and 
its  peculiar  circumstances.  It  divided  the  province  of  Louisiana 
into  two  Territories,  the  upper  and  the  lower ;  the  upper  taking 
the  name,  ultimately,  of  the  Missouri  Territory  ;  the  lower  tak 
ing  that  of  Qrj£ans..T^^itoj^l_It  is  in  the  part  of  the  bill  which 
relates  to  this  latter  Territory,  that  the  provisions  were  made 
which  most  strongly  asserted  the  power  of  Congress  in  terri 
torial  legislation,  and  especially  upon  the  subject  of  slavery. 
The  tenth  section  was  wbolly  taken  up  with  this  subject,  and 
ran  as  follows : — 

"  Sect.  10.  It  shall  not  be  lawful  for  any  person  or  persons  to 
import  or  bring  into  the  said  Territory,  from  any  port  or  place  without 
the  limits  of  the  United  States,  or  cause  or  procure  to  be  so  imported 
or  brought,  or  knowingly  to  aid  or  assist  in  importing  or  bringing  any 
slave  or  slaves.  And  every  person  so  offending,  and  being  thereof  con 
victed  before  any  Court  within  said  Territory,  having  competent  juris 
diction,  shall  forfeit  and  pay  for  each  and  every  slave  so  imported  or 
brought,  the  sum  of  three  hundred  dollars ;  one  moiety  for  the  use  of 
the  United  States,  and  the  other  moiety  for  the  use  of  the  person  or 
persons  who  shall  sue  for  the  same ;  and  every  slave  so  imported  or 
brought,  shall  thereupon  become  entitled  to  and  receive  his  or  her  free 
dom.  It  shall  not  be  lawful  for  any  person  or  persons  to  import  or 
bring  into  the  said  Territory,  from  any  port  or  place  within  the  limits  of 
the  United  States,  or  to  cause  or  procure  to  be  so  imported  or  brought, 
or  knowingly  to  aid  or  assist  in  so  importing  or  bringing,  any  slave  or 


SUPREME  COURT'S  DECISION,  ETC.  63 

slaves,  which  shall  have  been  imported  since  the  first  day  of  May,  one 
thousand  seven  hundred  and  ninety-eight,  into  any  port  or  place  within 
the  limits  of  the  United  States,  or  which  may  hereafter  be  so  imported 
from  any  port  or  place  without  the  limits  of  the  United  States ;  and 
every  person  so  offending,  and  being  thereof  convicted  before  any  Court 
within  said  Territory,  having  competent  jurisdiction,  shall  forfeit  and 
pay  for  each  and  every  slave  so  imported  or  brought  from  without  the 
United  States,  the  sum  of  three  hundred  dollars,  one  moiety  for  the  use 
of  the  United  States,  and  the  other  moiety  for  the  use  of  the  person  or 
persons  who  shall  sue  for  the  same  ;  and  no  slave  or  slaves  shall  directly 
or  indirectly  be  introduced  into  said  Territory,  except  by  a  citizen  of  the 
United  States  removing  into  said  Territory  for  actual  settlement,  and 
being  at  the  time  of  such  removal  bona  fide  owner  of  such  slave  or 
slaves  ;  and  every  slave  imported  or  brought  into  the  said  Territory,  con 
trary  to  the  provisions  of  this  act,  shall  thereupon  be  entitled  to,  and 
receive  his  or  her  freedom." 

This  section  contains  three  provisions  on  the  subject  of 
slaves :  1.  That  no  one  shall  be  imported  into  the  Territory  from 
foreign  parts.  2.  That  no  one  shall  be  carried  into  it  who  had. 
been  imported  into  the  United  States  since  the  first  day  of  May, 
1798.  3.  That  no  one  shall  be  carried  into  it  except  by  the 
owner,  and  for  his  own  use  as  a  settler  ;  the  penalty  in  every 
instance  being  a  fine  upon  the  violator  of  the  law,  and  freedom 
to  the  slave.  The  first  of  these  prohibitions  is  the  same  that 
was  passed  for  the  Territory  of  Mississippi  at  its  organization,  in 
April,  1798  ;  and  which,  as  it  has  been  shown,  was  unanimously 
supported  by  Southern  members  at  the  time  it  was  adopted. 
The  prohibition  in  the  Orleans  Territorial  Act  was  four  years 
before,  and  that  in  the  Mississippi  Act  was  ten  years  before,  the 
constitutional  right  of  Congress  accrued  to  prevent  the  impor 
tation  of  slaves  into  the  original  States.  It  was  a  strong  meas 
ure,  in  both  instances,  to  show  the  impatience  of  Congress  to 
put  an  end  to  the  slave  trade,  and  that,  while  it  discriminated 
between  States  and  Territories,  it  made  no  distinction  between 
old  and  new  territory,  and  legislated  for  each  according  to  its 
discretion.  The  second  prohibition  was  still  stronger,  and  asserts 
a  still  higher  power  over  the  subject  of  slavery  in  a  Territory. 
It  reaches  back  to  the  first  day  of  May,  1798,  to  get  hold  of  a 
slave  imported  from  abroad  into  any  State  or  Territory  since  that 
time,  and  gives  him  liberty,  and  fines  his  conductor,  if  carried 


64:  EXAMINATION   OF   THE 

into  the  Territory  of  Orleans.  jSTow,  the  slave  so  to  be  liberated, 
was  property  in  the  State  from  which  he  should  be  carried,  hav 
ing  been  constitutionally  imported  into  that  State ;  yet  if  taken 
into  this  Territory  by  authority  of  his  owner,  the  property  wras 
forfeited  and  lost,  without  compensation  to  his  owner,  and  with 
a  fine  upon  the  owner  for  doing  so  ;  and  all  this  as  long  as  ten 
years,  it  might  be,  before  the  Congress  had  a  right  to  prohibit 
the  foreign  importation  of  slaves.  For  what  reason  the  first 
day  of  May,  1798,  should  have  been  taken  for  this  date  of 
prohibition,  forfeiture  and  fine,  does  not  appear  ;  but,  probably, 
to  make  it  correspond  with  the  prohibition  of  imported  slaves 
into  the  Territory  of  Mississippi — the  first  Southern  Territory  in 
which  Congress  legislated  upon  slavery.  But  whether  the  date 
was  taken  for  that  reason,  or  for  any  other,  or  without  reason, 
arbitrarily,  the  character  of  the  act  is  the  same — the  assertion 
of  a  right  in  Congress  to  legislate  upon  slavery  in  a  Territory 
without  regard  to  the  Constitution.  The  third  prohibition  was 
in  the  same  line  of  policy,  and  still  stronger  than  the  two  preced 
ing.  It  liberated  any  slave,  from  any  part  of  the  United 
States,  who  should  have  been  taken  into  the  Territory,  except  by 
the  Txmafide  owner,  removing  into  it  for  actual  settlement,  and 
bringing  the  slave  for  his  own  use. 

These  three  prohibitions  certainly  amount  to  legislating  up 
on  slavery  in  a  Territory,  and  that  a  new  Territory,  acquired 
since  the  formation,  of  the  Constitution,  and  without  the  aid  of 
compacts  with  any  State. 

None  of  these  prohibitions  passed  the  Senate  without  obser 
vation,  or  without  consideration  of  their  import.  They  were 
voted  upon  separately,  either  on  motions  to  strike  them  out,  or 
to  extend  them ;  so  that  the  judgment  of  the  Senate  was  delib 
erately  expressed  in  each  case,  besides  being  sanctioned  in  the 
lump  in  the  almost  unanimous  vote  on  the  final  passing  of  the 
bill. 

The  bill  having  passed  the  Senate,  was  taken  up  in  the 
House,  in  which,  besides  the  sanction  to  all  its  provisions  in  the 
final  vote,  there  were  several  special  votes  given  on  motions  of 
amendment,  in  wThich  the  House  showed  that  it  acted  independ 
ently  of  the  Constitution  and  repugnantly  to  it,  and  that  upon 
special  objection.  Thus :  the  right  to  a  jury  trial,  where  the 
matter  in  controversy  exceeded  the  value  of  twenty  dollars,  was 


SUPREME  COURT'S  DECISION,  ETC.  65 

denied,  though  guaranteed  by  the  Constitution,  which  was  in 
voked  on  the  occasion,  but  in  vain.  The  royal  power  of  proro 
gation  was  continued  to  the  governor,  though  opposed  by  some 
members.  Then  the  appointment  of  judges  for  a  term  of  years, 
instead  of  during  gpod  behavior.  In  these,  and  many  other 
instances  a  direct  question  was  made  upon  the  constitutionality 
of  the  provision,  and  always  rejected  upon  the  broad  ground 
that  the  Constitution  was  not  made  for  Territories,  and  had 
nothing  to  do  with  them. 

A  special  stand  was  made  on  each  of  these  cases,  and  some 
others,  by  a  few  members,  holding  the  Constitution  in  their 
hands,  and  pleading  its  infraction  by  the  proposed  provisions. 
Thus,  as  an  example  of  the  whole,  and  as  a  repulse  of  the  Con 
stitution  where  its  words  would  clearly  apply ;  Mr.  George  Wash 
ington  Campbell,  of  Tennessee,  moved  to  amend  the  section 
providing  for  the  judicial  power  ;  and  which  gave  the  right  of 
jury  trial  both  in  civil  and  criminal  cases,  "  if  *  either  party  de 
sired  it"  so  as  to  make  the  right  absolute  in  all  criminal  cases 
whatever,  and  in  all  civil  cases  where  the  value  in  controversy  ex 
ceeded  twenty  dollars.  He  said  :  "  He  conceived  that  in  legislat 
ing  for  the  people  of  Louisiana  they  were  bound  by  the  Constitu 
tion  of  the  United  States.  The  Constitution  expressly  declares 
that,  in  criminal  cases,  the  trial  shall  be  by  jury,  and  in  all  civil 
cases  where  the  sum  in  controversy  exceeds  the  value  of  twenty 
dollars  the  trial  shall  likewise  be  by  jury.  The  ninth  article  of  the 
amendments  to  the  Constitution  says :  '  In  all  suits  at  common 
law  where  the  value  in  controversy  exceeds  twenty  dollars  the 
right  of  trial  by  jury  shall  be  preserved  ; '  and  the  eighth  arti 
cle  says  :  '  In  all  criminal  trials  the  accused  shall  enjoy  the  right 
of  a  speedy  trial  by  an  impartial  jury."2  Here  was  a  direct 
question  made  between  the  bill  and  the  Constitution,  and  the 
vote  showed  that  the  House  deemed  the  bill,  because  territorial, 
independent  of  the  Constitution.  Only  about  thirty  members 
voted  for  Mr.  Campbell's  motion,  and  about  twenty-five  of  them, 
the  opponents  to  the  treaty,  and  who  would  do  nothing  to  recog 
nize  the  acquisition  of  the  purchased  province. 

The  anti-slavery  section — the  tenth — which  contained  the 

three  prohibitions  on  importations  and  removals  of  slaves  into 

Orleans  Territory,  encountered  but  little  opposition;  but 'there 

was  some  instructive  debate  on  the  general  character  of  the  bill 

5 


66  EXAMINATION   OF   THE 

for  the  government  of  the  Territory,  as  being  a  novelty  in  terri 
torial  government,  in  not  conforming  to  either  of  the  three 
grades  provided  by  the  ordinance  of  '87,  but  being  a  mixture 
of  the  two  first  grades.  In  this  sense  Mr.  Macon,  of  JN'orth 
Carolina,  said  :  "  My  first  objection  to  the  principle  contained 
in  the  section,  (the  4th,)  is,  that  it  establishes  a  species  of  gov 
ernment  unknown  to  the  laws  of  the  United  States.  We  have 
three  descriptions  of  governments — that  of  the  Union — that 
of  the  States — and  that  of  the  Territories.  I  believe  the  terri 
torial  government,  as  established  by  the  ordinance  of  the  old  Con 
gress,  the  best  adapted  to  the  circumstances  of  the  people  of 
Louisiana,  and  that  it  may  be  so  modified  as  to  meet  their  con 
venience.  The  people  residing  in  the  Mississippi  Territory  are 
under  this  kind  of  government.  Is  it  not  likely  that  the  people 
of  Louisiana  will  expect  the  same  form  of  government  and 
laws  with  their  neighbors  ?  The  simple  question  is,  what  kind 
of  government  is  most  fitted  for  those  people  ?  I  will  not  pre 
tend  to  say  they  are  fitted  for  a  State  government.  The  best 
way  to  prepare  them  for  snch  a  government  is  the  system  alrea 
dy  known  to  our  laws — one  grade,  or  the  other,  of  the  territo 
rial  government.  For  my  part,  I  should  prefer  (for  them)  the 
adoption  of  the  second  grade ;  but  I  would  prefer  the  first  to 
any  new  system."  Mr.  Lucas,  (John  B.  C.,)  of  Pennsylvania: 
"  An  argument  was  drawn  from  the  treaty,  that  these  people 
are  to  be  admitted  to  the  absolute  enjoyment  of  the  rights  of 
citizens ;  but  gentlemen  would  not  deny  that  the  time  when, 
and  the  circumstances  under  which  the  provisions  of  the  treaty 
were  to  be  carried  into  effect,  were  submitted  to  the  decision  of 
Congress.  It  has  been  remarked  that  this  bill  establishes  ele 
mentary  principles  of  government  never  previously  introduced 
in  the  government  of  any  Territory  of  the  United  States.  Grant 
ing  the  truth  of  this  observation,  it  must  be  allowed  that  the 
United  States  had  never  before  devolved  upon  them  the  making 
provision  for  the  government  of  a  people  under  such  circum 
stances."  Mr.  Yarnum  was  of  opinion  that  the  section  in  the 
bill,  (the  4th,)  provided  such  a  form  of  government  as  had  never 
been  known  in  the  United  States.  Dr.  Eustis,  of  Massachusetts, 
"  did  not  believe  that  the  section  under  consideration,  in  its  pres 
ent  form,  consistent  either  with  the  spirit  of  the  Constitu 
tion  or  the  treaty.  The  government  laid  down  in  the  bill  is 


SUPREME  COURT'S  DECISION,  ETC.  67 

certainly  a  new  thing  in  the  United  States  ;  but  the  people  of 
this  country  differ  materially  from  the  citizens  of  the  United 
States.  I  speak  of  the  character  of  the  people  at  the  present 
time.  When  they  shall  be  better  acquainted  with  the  principles 
of  our  Government,  and  shall  have  become  desirous  of  partici 
pating  in  our  privileges,  it  will  be  full  time  to  extend  to  them 
the  elective  franchise."  Mr.  Holland,  of  North  Carolina : — 
"The  provisions  of  this  section  are  said  to  be  worse  than  those 
of  the  first  grade  of  territorial  governments ;  but  this  is  incor 
rect.  The  plan  is  not  equal  to  the  second  grade,  but  it  is  cer 
tainly  superior  to  the  first  grade.  The  first  grade  gives  the 
governor  and  judges  all  the  power  granted  by  this  section  ;  and 
this  section,  in  addition  to  the  governor  and  judges,  contem 
plates  the  appointment  of  thirteen  councillors.  Is  not  this  pre 
ferable  to  giving  the  whole  power  to  the  governor  and  judges  ? " 
Mr.  Boyle,  of  Kentucky  :  "  I  am  unwilling  to  extend  Govern 
ment  patronage  beyond  the  line  of  irresistible  necessity.  For 
I  believe,  if  ever  this  country  is  to  follow  the  destiny  of  other 
nations,  this  destiny  will  be  accelerated  by  the  overwhelming 
torrent  of  executive  patronage.  I  feel  as  high  a  veneration  for 
the  present  chief  magistrate  as  any  man  on  this  floor.  I  have 
retained  the  full  force  of  my  regard  for  him ;  but  were  he  an 
angel  instead  of  a  man,  I  would  not  clothe  him  with  this  power ; 
because,  in  my  estimation,  the  investiture  of  such  high  powers 
is  unnecessary."  Mr.  Sloan,  of  Pennsylvania  :  "  Can  anything 
be  more  repugnant  to  the  principles  of  just  government  ?  Can 
any  thing  be  more  despotic  than  for  a  President  to  appoint  a  gov 
ernor  and  a  legislative  council,  the  governor  having  a  negative 
on  all  their  acts,  and  power  to  prorogue  them  at  pleasure? 
What  liberty,  what  power,  is  here  vested  in  the  people  ? " 

Mr.  Justice  Campbell,  in  quoting  from  these  speeches,  has 
been  too  brief  to  show  distinctly  their  points  of  objection.*     In 


*  Mr.  Varnum  said :  "  The  bill  provided  such  a  government  as  had  never  been 
known  in  the  United  States."  Mr.  Eustis :  "  The  government  laid  down  in  this  bill  is 
certainly  a  new  thing  in  the  United  States." — Mr.  Lucas  :  "  It  has  been  remarked, 
that  this  bill  establishes  elementary  principles  never  previously  introduced  in  the  gov 
ernment  of  any  Territory  of  the-United  States.  Granting  the  truth  of  this  observation," 
&c.  &c.  Mr.  Macon  ;  "  My  first  objection  to  the  principle  contained  in  this  section  is, 
that  it  establishes  a  species  of  government  unknown  to  the  United  States."  Mr.  Boyle : 
"  Were  the  President  an  angel  instead  of  a  man,  I  would  not  clothe  him  with  this 


68  EXAMINATION    OF   THE 

looking  at  them  more  fully,  and  in  seeing  the  reasons  they  give 
for  their  opinions,  they  are  seen  to  apply  to  the  form  of  the  gov 
ernment  to  be  established,  as  being  despotic,  and  as  not  con 
forming  to  the  ordinance  of  '87,  which,  after  its  adoption  by 
Congress  in  the  year  '89,  became  a  law  of  the  United  States,  and 
intended  for  the  South-western  as  well  as  the  North-western  Ter 
ritories  :  the  anti-slavery  clause  alone  excepted.  The  character 
of  the  bill  was  doubtless,  as  declared  by  these  members,  a  des 
potism,  unsanctioned  by  any  principle  in  the  Constitution,  and 
repugnant  both  to  its  spirit  and  provisions  ;  but  that  only  proves 
that  they  acted  independently  of  the  Constitution,  and  know 
ingly  refused  to  be  governed  by  it.  The  bill  was  passed  by  a 
great  majority — 66  to  21. 

But  the  legislative  action  of  Congress  on  Territories  at  this 
session — 1803-'4 — did  not  stop  at  these  two  acts  for  Lower 
Louisiana :  there  was  another  act  for  the  upper  half  of  the  prov 
ince,  afterwards  called  the  Territory  of  Missouri,  very  worthy  to 
be  considered  in  this  connection  for  its  disregard  of  the  Consti 
tution  and  its  want  of  discrimination  between  new  and  old  ter 
ritory.  The  Supreme  Court  makes  a  great  difference  between 
these  two  classes  of  territories,  and  a  corresponding  difference 
in  the  power  of  Congress  with  respect  to  them,  and  to  the  pre 
judice  of  the  new  Territory.  The  Congress  of  1803-'4r  did  not 
see  this  difference  ;  and  acting  upon  a  sense  of  plenary  author 
ity,  it  extended  the  ordinance  across  the  Mississippi — sent  the 
governor  and  judges  of  Indiana  (for  Indiana  had  then  become  a 
Territory) — sent  this  governor  (William  Henry  Harrison)  and 
the  three  Indiana  judges  across  the  Mississippi  river,  to  admin 
ister  the  ordinance  of  '87  in  that  upper  half  of  Louisiana.  Such 
was  the  fact !  and  here  is  the  law  under  which  it  was  done,  be 
ing  section  12  of  the  act  erecting  Louisiana  into  two  Territories, 
and  providing  for  their  temporary  government  :— 

"  The  residue  of  the  province  of  Louisiana,  ceded  to  the  United 
States,  shall  be  called  the  District  of  Louisiana,  the  government  whereof 
shall  be  organized  and  administered  as  follows :  The  executive  power 

power."  Mr.  G.  W.  Campbell :  "  On  examining  the  section,  it  will  appear  that  it 
really  establishes  a  complete  despotism."  Mr.  Sloan  :  "  Can  any  thing  be  more  repug 
nant  to  the  principles  of  just  government  ?  Can  any  thing  be  more  despotic  ?  "— 
Mr.  Justice  Campbell. — Annals  of  Congress,  1803-'4. 


SUPREME  COURT'S  DECISION,  ETC.  69 

now  vested  in  the  governor  of  Indiana,  (then  including  Illinois,)  shall 
extend  to  and  be  exercised  in  the  said  district  of  Louisiana.  The 
governor  and  judges  of  Indiana  Territory  shall  have  power  to  establish, 
in  the  said  district  of  Louisiana,  inferior  courts,  and  to  prescribe  their 
jurisdiction  and  duties,  and  to  make  all  laws  which  they  may  deem  con 
ducive  to  the  good  government  of  the  inhabitants  thereof — subject  to  the 
disapproval  of  Congress." 

Here  was  old  and  new  territory  coupled  together  under  one 
territorial  government,  and  the  new  put  under  the  officers  of  the 
old,  and  both  governed  by  the  ordinance  of  1787.  The  law- 
making  power  was*  delegated  to  them,  and  they  might  have 
suppressed  slavery  under  that  power  ;  but  finding  the  institution 
there,  they  let  it  alone.  Such  was  the  first  territorial  govern 
ment  of  Upper  Louisiana. 

And  now  for  the  men  who  passed  these  acts — who  established 
these  governments — so  incompatible  with  the  Constitution,  and 
so  fully  asserting  absolute  power  over  this  new  territory.  Who 
were  they  ?  They  were  the  men  of  the  Revolution — of  the  ordi 
nance  of  '87 — of  the  Constitution  of  that  year — of  the  first  ad 
ministration  of  the  Federal  Government  in  its  early  age ; — and 
the  authors  of  the  acquisition  of  Louisiana.  Mr.  Jefferson  was 
President — Mr.  Madison  Secretary  of  State — and  the  two  Houses 
of  Congress  filled  with  men  who  had  acted  their  good  part  in 
founding,  and  in  putting  into  operation,  the  new  Federal  Gov 
ernment.  These  were  the  men  who  did  these  things,  and  who 
ought  to  be  allowed  to  know  something  of  their  own  work;  and 
if  they  did  not,  somebody  existing  at  the  time  ought  to  have 
known  of  their  dreadful  usurpations,  and  proclaimed  them  to 
the  world.  No  such  discovery  was  made.  Fifty-four  years 
have  passed  away  since  these  things  were  done,  and  by  such 
men,  and  with  universal  acceptance  at  the  time,  and  with  a  half 
century  of  universal  approbation  :  yet,  if  the  decisions  of  the 
Supreme  Court  are  to  stand,  and  these  territorial  acts  subjected 
to  the  test  of  the  Constitution,  it  will  only  want  a  case  to  be  got 
before  the  Court  to  subject  them  to  abrogation,  as  the  Missouri 
Compromise  Act  was  after  an  honored  existence  of  thirty-seven 
years. 

It  is  now  seen,  from  what  has  been  shown,  that,  in  govern 
ing  their  Territories,  Congress  and  the  Executive  looked  to  their 


TO  EXAMINATION   OF   THE 

rights  as  sovereigns  and  proprietors,  and  not  to  the  Constitution, 
for  their  authority  :  and  this  view  seems  to  have  been  that  of 
the  Supreme  Court  of  the  United  States  some  thirty  years  ago. 
A  case  from  the  Territory  of  Florida,  under  a  territorial  law, 
was  brought  up  to  that  Court  which  gave  rise  to  the  question, 
what  Congress  might  do  in  the  Territory  ?  and  what  it  might 
authorize  the  territorial  legislature  to  do?  In  deciding  this 
question,  the  Court,  speaking  through  Chief  Justice  Marshall, 
says : — 

"  In  the  mean  time  Florida  continues  to  be  a  Territory  of  the  United 
States,  governed  by  that  clause  of  the  Constitution  which  empowers 
Congress  to  make  all  needful  rules  and  regulations  respecting  the  terri 
tory  or  other  property  of  the  United  States.  Perhaps  the  power  of 
governing  a  Territory  belonging  to  the  United  States,  which  has  not,  by 
becoming  a  State,  acquired  the  means  of  self-government,  may  result, 
necessarily,  from  the  facts  that  it  is  not  within  the  jurisdiction  of  any 
particular  State,  and  is  within  the  power  and  jurisdiction  of  the  United 
States.  The  right  to  govern  may  be  the  inevitable  consequence  of  the 
right  to  acquire  territory.  Whichever  may.  be  the  source  from  which 
the  power  is  derived,  the  possession  of  it  is  unquestionable" 

"  The  right  to  govern  may  be  the  inevitable  consequence  of 
the  right  to  acquire  territory," — a  very  fair  deduction,  even  in 
a  naked  case  of  unconditional  acquisition.  How  much  stronger 
where  the  acquisition  is  accompanied  by  an  obligation  to  gov 
ern  ?  where  the  territory  and  its  inhabitants  are  received  upon 
the  condition  ,that  they  shall  be  protected  !  protected  in  their 
persons,  property,  and  religion !  How  was  that  to  be  done 
without  government  ?  This  is  the  case  with  the  Louisiana  pur 
chase  ;  and  the  right  to  hold  the  territory,  not  only  gives  the 
right  of  government,  but  imposes  the  duty  of  government  upon 
the  new  owner. 

The  present  Supreme  Court,  in  pronouncing  its  "  Opinion," 
has  noticed  this  decision  of  its  predecessor,  but  with  an  argu 
ment  to  show  that  it  was  not  a  decision,  and  that  the  present 
Court  is  not  bound  by  it.  And  it  is  right  to  give  it  the  benefit 
of  this  argument ;  thus  : — 

"  It  is  thus  clear,  from  the  whole  opinion  on  this  point,  that  the 
Court  did  not  mean  to  decide  whether  the  power  was  derived  from  the 
clause  in  the  Constitution,  or  was  the  necessary  consequence  of  the  right 


SUPREME   COURT'S   DECISION,    ETC.  71 

to  acquire.  They  do  decide  that  the  power  in  Congress  is  unquestion 
able,  and  in  this  we  entirely  concur,  and  nothing  will  be  found  in  this 
opinion  to  the  contrary.  The  power  stands  firmly  on  the  latter  alterna 
tive  put  by  the  Court — that  is,  as  '  the  inevitable  consequence  of  the 
right  to  acquire  territory. ,' 

"  And  what  still  more  clearly  demonstrates  that  the  Court  did  not 
mean  to  decide  the  question,  but  leave  it  open  for  future  consideration, 
is  the  fact  that  the  case  was  decided  in  the  Circuit  Court  by  Mr.  Justice 
Johnson,  and  his  decision  was  affirmed  by  the  Supreme  Court.  His 
opinion  at  the  circuit  is  given  in  full  in  a  note  to  the  case,  and  in  that 
opinion  he  states,  in  explicit  terms,  that  the  clause  of  the  Constitution 
applies  only  to  the  territory  then  within  the  limits  of  the  United  States, 
and  not  to  Florida,  which  had  been  acquired  by  cession  from  Spain. 
This  part  of  his  opinion  will  be  found  in  the  note  in  page  517  of  the 
report.  But  he  does  not  dissent  from  the  opinion  of  the  Supreme 
Court ;  thereby  showing  that,  in  his  judgment,  as  well  as  that  of  the 
Court,  the  case  before  them  did  not  call  for  a  decision  on  that  particular 
point;  and  the  Court  abstained  from  deciding  it.  And  in  a  part  of  its 
opinion  subsequent  to  the  passage  we  have  quoted,  where  the  Court 
speak  of  the  legislative  power  of  Congress  in  Florida,  they  still  speak 
with  the  same  reserve." 

This  is  the  argument  of  the  present  Court,  to  show  the  inap 
plicability  of  the  Florida  decision  to  the  case  before  itself;  and 
granting,  for  the  sake  of  the  argument,  that  Chief  Justice  Mar 
shall  leaves  it  doubtful  from  which  source  the  power- is  derived, 
yet  he  says  it  is  unquestionably  possessed  :  and  that  is  sufficient 
— for  in  either  case  the  power  is  unlimited ;  and  where  there 
are  two  concurrent  rights,  the  superior  always  takes  effect,  and 
the  inferior  is  only  cumulative.  The  sovereign  derivation  of 
the  right  is  the  highest,  and  is  sufficiently  affirmed  by  Chief 
Justice  Marshall  in  the  declaration  of  the  inevitability  of  the 
right  to  govern  what  you  have  a  right  to  hold.  And  this  view 
is  confirmed  in  another  part  of  the  same  Florida  decision,  where 
the  Chief  Justice,  speaking  of  the  territorial  courts,  and  of  the 
right  of  Congress  to  establish  such  courts,  with  judges  holding 
for  a  term  of  years  instead  of  good  behavior,  he  says  :— 

"  They  are  legislative  courts,  created  in  virtue  of  the  general  right 
of  sovereignty  which  exists  in  the  Government,  or  in  virtue  of  that 
clause  which  enables  Congress  to  make  all  needful  rules  and  regulations 
respecting  the  territory  belonging  to  the  United  States." 


72  EXAMINATION   OF  THE 

This  is  enough — sufficiently  explicit — to  affirm  the  sovereign 
right  of  government  in  the  owner  of  these  Territories.  But  a 
member  of  the  present  Court,  (Mr.  Justice  M'Lean,)  differed 
from  Chief  Justice  Taney  in  his  estimate  of  this  decision.  He 
deemed  it  sufficiently  clear  in  itself,  and  authorized  by  the 
point  raised  for  the  Court's  decision.  He  says,  (in  his  dissent 
ing  opinion :) — 

u  I  can  see  no  want  of  precision  in  the  language  of  the  Chief  Jus 
tice;  his  meaning  cannot  be  mistaken.  He  states,  first,  the  third 
section  as  giving  power  to  Congress  to  govern  the  Territories,  and  two 
other  grounds  from"  which  the  power  may  also  be  implied.  The  objec 
tion  seems  to  be,  that  the  Chief  Justice  did  not  say  which  of  the 
grounds  stated  he  considered  the  source  of  the  power.  He  did  not 
specifically  state  this,  but  he  did  say,  '  whichever  may  be  the  source 
whence  the  power  is  derived,  the  possession  of  it  is  unquestioned.'  No 
opinion  of  the  Court  could  have  been  expressed  with  a  stronger  empha 
sis;  "the  power  in  Congress  is  unquestioned."  But  those  who  have 
undertaken  to  criticise  the  opinion,  consider  it  without  authority,  be 
cause  the  Chief  Justice  did  not  designate  specially  the  power.  This 
is  a  singular  objection.  If  the  power  be  unquestioned,  it  can  be  a 
matter  of  no  importance  on  which  ground  it  is  exercised.  The  opinion 
clearly  was  not  obiter  dicta.  The  turning  point  in  the  case  was, 
whether  Congress  had  power  to  authorize  the  territorial  Legislature 
of  Florida  to  pass  the  law  under  which  the  territorial  court  was 
established,  whose  decree  was  brought  before  this  Court  for  revision. 
The  power  of  Congress,  therefore,  was  the  point  in  issue." 

I  think  Mr.  Justice  M'Lean  entirely  right  in  his  understand 
ing  of  the  opinion  delivered  by  Chief  Justice  Marshall ;  and  I 
think  that  opinion  clear  in  referring  a  right  of  governing  a  Ter 
ritory  to  the  right  of  acquiring  it.  And  in  this  it  corresponds 
with  the  action  of  Congress,  and  the  declaration  of  eminent 
members  at  the  time — namely,  by  Mr.  Randolph,  that  the  right 
of  government  was  the  right  of  sovereignty  ;  and  by  Dr.  Eustis, 
that  the  government  of  the  Territory  was  imperiously  com 
manded  by  its  acquisition. 

Strong  as  was  the  course  of  Congress  in  the  act  taking  pos 
session  of  Louisiana,  and  continuing  therein  the  Spanish  gov 
ernment  under  American  officers,  it  was  repeated,  in  all  its 
extent,  sixteen  years  afterwards,  on  the  acquisition  of  Florida. 
The  Louisiana  act  of  October,  1803,  was  copied  for  Florida  in 


SUPREME  COURT'S  DECISION,  ETC.  73 

March,  1819.  All  the  powers  exercised  there  by  the  King's 
officers  were  to  be  exercised,  until  the  end  of  the  session  of  the 
next  Congress,  by  such  persons  as  the  President  should  direct.* 
And  thus,  two  different  administrations,  and  .two  different  Con 
gresses,  at  the  distance  of  sixteen  years  apart,  governed  two 
acquisitions  of  new  territory  exactly  alike,  and  as  incompatibly 
with  our  Constitution  as  a  Spanish  regal  despotism  is  incompat 
ible  with  our  free  Republican  government.  That  act  was  ap 
proved  by  Mr.  Monroe,  and  no  dissenting  voice  was  ever  heard 
from  his  cabinet — able,  vigilant,  and  strongly  Southern  as  that 
cabinet  was. 

Following,  step  by  step,  the  course  pursued  in  the  Louisiana 
case,  a  territorial  government  was  afterwards  provided  there, 
but  after  an  interval  of  four  years — during  all  which  time  the 
Spanish  government  was  continued  over  the  people — General 
Jackson,  the  governor,  took  care  that  power  should  be  no 
"  barren  sceptre  "  in  his  hands.  This  territorial  government, 
established  in  March,  1823,  took  the  ordinance  of  ?87  for  its 
basis,  but  with  the  modifications  which  assimilated  it  to  the  act 
for  the  government  of  the  Orleans  Territory.  It  was  nearly  a 
transcript  from  that  act,  so  far  as  government  was  concerned  ; 
and  we  have  seen  what  that  was — a  total  abnegation  of  the 
Constitution  of  the  United  States  in  all  its  provisions,  letter 
and  spirit.  So  that,  in  these  two  first  instances  of  the  acquisi 
tion  of  foreign  territory — Florida  and  Louisiana — two  different 
administrations,  and  three  different  Congresses — those  of  1803 
-'4,  of  1818-'19,  and  of  1822-'3— at  intervals  of  sixteen  years 
and  twenty  years  apart,  acted  in  the  same  way,  governing  the 
Territories  independently  of  the  Constitution,  and  incompatibly 

*  The  following  was  the  act : 

SEC.  2.  And  be  it  further  enacted,  That,  until  the  end  of  the  first  session  of  the 
next  Congress,  unless  provision  for  the  temporary  government  of  said  territories  be 
sooner  made  by  Congress,  all  the  military,  civil,  and  judicial  powers,  exercised  by  the 
officers  of  the  existing  government  of  the  same  territories,  shall  be  vested  in  such 
person  and  persons,  and  shall  be  exercised  in  such  manner,  as  the  President  of  the 
United  States  shall  direct,  for  the  maintaining  the  inhabitants  of  said  territories  in  the 
free  enjoyment  of  their  liberty,  property  and  religion ;  and  the  laws  of  the  United 
States,  relative  to  the  collection  of  revenue,  and  the  importation  of  persons  of  color, 
shall  be  extended  to  the  said  territories. 

m^°  Up  to  this  time  no  one  thought  of  extending  the  Constitution  to  a  Territory  : 
laws  only  were  so  extended,  and  only  the  few  deemed  applicable. 


Y4:  EXAMINATION    OF   THE 

with  it.  Both  these  acts  for  the  government  of  Florida  passed 
under  the  administration  of  Mr.  Monroe — Mr.  John  Quincy 
Adams,  Secretary  of  State  ;  Mr.  Wm.  II.  Crawford,  Secretary 
of  the  Treasury ;  Mr.  John  C.  Calhoun,  Secretary  at  War  ;  Mr. 
Smith  Thompson,  Secretary  of  the  Navy ;  Mr.  Return  Jona 
than  Meigs,  Post-Master  General ;  Mr.  Wirt,  Attorney  Gene 
ral  :  a  President  and  cabinet  inferior  to  none  that  ever  appeared 
in  this  Union,  and  who  saw  no  want  of  power  in  Congress  to 
pass,  or  in  themselves  to  approve,  these  forms  of  territorial 
government  in  which  the  whole  spirit  of  our  Constitution  is 
ignored,  and  its  written  provisions  either  disregarded  or  flatly 
contradicted.  And  what  were  the  two  Houses  of  Congress  at 
that  time  ?  Perhaps  if  the  period  of  our  legislative  history 
was  to  be  picked  out  when  the  national  legislature  appeared  to 
the  greatest  advantage,  it  would  be  in  that  middle  period  of 
Mr.  Monroe's  administration, when  the  surviving  great  men  of 
the  first  generation  were  still  upon  the  stage,  and  the  gigantic 
progeny  of  the  second  were  mounting  upon  it.  I  came  into 
Congress  at  that  period,  and  such  was  the  awe  and  reverence 
with  which  the  Senate  inspired  me,  that  I  sat  there  six  years 
without  opening  my  mouth  on  any  subject  outside  of  my  own 
State.  0 !  si  sic  semper  !  And  yet  this  assemblage  of  the 
illustrious  old,  and  not  less  illustrious  young,  are  now,  after  al 
most  forty  years,  to  be  considered  as  ignorant  of  the  Constitution 
which  they  had  helped  to  make,  and  were  sworn  to  observe, 
and  doing  things  which  require  to  be  repudiated. 

The  Supreme  Court,  in  its  elaborate  opinion,  has  put  itself 
to  great  labor  to  prove  the  territorial  legislation  of  Congress  to 
be  incompatible  with  the  Constitution : — most  superfluous 
labor,  as  I  conceive,  there  being  no  pretension  on  the  part  of 
Congress  to  be  acting  under  the  Constitution,  and  continued  de 
clarations,  (as  well  as  acts,)  to  the.  contrary — members  continu 
ally  supporting  measures  in  Territories  wrhich  they  repulsed  in 
States — as,  for  local  objects  of  internal  improvement,  for  banks, 
corporations.  It  can  be  said,  and  without  allowing  a  single  ex 
ception,  that  there  has  not  been  a  member  of  either  House,  from 
the  formation  of  the  Government  to  the  present  day,  who  has 
not  voted  for  these  objects  in  Territories  who  would  not  vote  for 
them  in  States,  upon  the  avowed  ground  that  the  Constitution 
did  not  extend  to  Territories.  I  have  seen  all  parties  so  vote— 


SUPKEME  COUET'S  DECISION,  ETC.  75 

the  very  strictest  of  the  State  Rights  party.  The  proceedings 
of  Congress  are  full  of  such  votes,  and  of  the  remark,  "  It  is  a 
Territory :  the  Constitution  does  not  extend  to  it"  And  this 
finishes  the  second  stage  of  this  Historical  and  Legal  Examina 
tion,  comprising  the  governmental  legislation  of  Congress  upon 
these  two  new  Territories — Louisiana  and  Florida — and  showing 
that  they  were  governed  without  limitations,  and  in  the  pleni 
tude  of  sovereign  right,  qualified  only  by  the  conditions  on 
which  they  were  ceded. 


THIRD  STAGE  OF  THE  EXAMINATION —EMBRAC 
ING  THE  LEGISLATION  ON  THE  MISSOURI  COM 
PROMISE  ACT. 

III.  It  was  at  the  session  of  1818-'19  that  the  Missouri  Ter 
ritory,  having  been  trained  through  the  three  grades  of  territo 
rial  government  prescribed  by  the  ordinance  of  '87,  and  being 
then  in  the  third  grade,  and  with  a  competent  population, 
applied  through  her  Territorial  Legislature  for  an  Act  of  Con 
gress  to  enable  her  to  hold  a  convention  for  the  formation  of  a 
State  Constitution,  preparatory  to  the  formal  application  for 
a'dmission  into  the  Union.  The  bill  had  been  perfected,  its 
details  adjusted,  and  was  upon  its  last  reading,  when  a  motion 
was  made  by  Mr.  James  Tallmadge,  of  New  York,  to  impose  a 
restriction  on  the  State  in  relation  to  slavery,  to  restrain  her 
from  the  future  admission  of  slavery  within  her  borders.  The 
motion  gave  rise  to  a  vehement  debate,  which  soon  divided  the 
House  geographically,  set  the  members  on  fire,  and  soon  attain 
ed  a  height  which  threatened  the  Union  with  dissolution.  As  a 
sample,  take  a  specimen  of  what  passed  between  some  members 
from  the  Free  and  the  Slave  States — thus  :— 

Mr.  Scott,  delegate  from  Missouri :  "  He  would  trouble  the  House 
no  longer ;  he  thanked  them  for  the  attention  and  indulgence  already 
extended  to  him.  But  he  desired  to  apprise  gentlemen,  before  he  sat 
down,  that  they  were  sowing  the  seeds  of  discord  in  this  Union,  by 
attempting  to  institute  States  with  unequal  privileges  and  unequal  rights 
— that  they  were  signing,  sealing,  and  delivering  their  own  death  war 
rant — that  the  weapon  they  were  so  unjustly  wielding  against  the  people 


76  EXAMINATION   OF   THE 

of  Missouri  was  a  two-edged  sword.  From  the  cumulative  nature  of 
power,  the  day  might  come  when  the  General  Government  might,  in  turn, 
undertake  to  dictate  to  them  on  questions  of  internal  policy.  Missouri, 
now  young  and  feeble,  whose  fate  and  murmurs  would  excite  but  little 
alarm  or  sensibility,  might  become  an  easy  victim  to  motives  of  policy, 
party  zeal,  or  mistaken  ideas  of  power ;  but  other  times  and  other  men 
would  succeed :  a  future  Congress  might  come,  who,  under  the  sancti 
fied  forms  of  Constitutional  power,  would  dictate  to  them  odious  condi 
tions — nay,  inflict  on  their  internal  independence  a  wound  more  deep 
and  dreadful  than  even  this  on  Missouri.  The  House  had  seen  the 
force  of  the  precedent,  in  the  mistaken  application  of  the  conditions 
imposed  on  the  people  of  Louisiana  anterior  to  their  admission  into  the 
Union.  And,  whatever  might  be  the  ultimate  determination  of  the 
House,  he  considered  this  question  big  with  the  fate  of  Caesar  and  'of 
Koine." 

To  this  Mr.  Tallmadge  replied : 

"  The  honorable  gentleman  from  Missouri,  who  has  just  resumed  his 
seat,  has  told  us  of  the  Ides  of  March,  and  cautioned  us  to  beware  of 
the  fate  of  Caesar  and  of  Rome.  Another  gentleman,  Mr.  Cobb,  from 
Georgia,*  in  addition  to  other  expressions  of  great  warmth,  has  said, 
that  if  we  persist,  the  Union  will  be  dissolved ;  and,  with  a  look  fixed 
on  me,  has  told  us  that  we  have  kindled  a  fire  which  all  the  waters  of. 
the  ocean  cannot  put  out,  and  seas  of  blood  can  alone  extinguish.  Sir, 
language  of  this  sort  has  no  effect  on  me.  My  purpose  is  fixed ;  it  is 
interwoven  with  my  existence ;  its  durability  is  limited  with  my  life ; 
it  is  a  great  and  glorious  cause,  setting  boundaries  to  a  slavery  the  most 
cruel  and  debasing  the  world  ever  witnessed.  It  is  the  freedom  of  man 
— it  is  the  cause  of  unredeemed  and  unregenerated  human  beings.  Sir, 
if  a  dissolution  of  the  Union  must  take  place,  let  it  be  so  !  If  civil 
war,  which  gentlemen  so  much  threaten,  must  come,  I  can  only  say,  let 
it  come  !  My  hold  on  life  is  probably  as  frail  as  that  of  any  man  who 
now  hears  me ;  but,  while  that  hold  lasts,  it  shall  be  devoted  to  the  ser 
vice  of  my  country — to  the  freedom  of  man.  If  blood  is  necessary  to 
extinguish  any  fire  which  I  have  assisted  to  kindle,  I  can  assure  gentle 
men,  while  I  regret  the  necessity,  I  shall  not  forbear  to  contribute  my 
mite." 

And  this  was  the  character  of  the  debate  on  the  second  day 
after  it  opened  ! — so  rapid  was  the  conflagration  of  the  passions, 

*  Thomas  W.  Cobb.  His  speech  on  this  occasion  is  merely  noted,  not  reported 
among  the  debates,  as,  in  fact,  but  a  small  part  of  the  speeches  were  at  that  day. 


ETC.  77 

and  the  desperation  of  the  resolves.  To  what  height  did  they 
not  rise  in  the  two  years  that  this  exasperating  controversy  con 
tinued  in  Congress  !  inflamed  all  the  while  by  the  resolves  of 
popular  meetings  and  legislative  assemblies — by  newspaper 
publications — by  popular  harangues — and  even  by  pulpit 
addresses. 

The  numerical  force  of  the  House  was  against  Missouri,  and 
the  restriction  was  there  incorporated  into  the  bill  by  a  vote  of 
87  to  76  ;  but  in  the  Senate  the  majority  was  the  other  way, 
and  the  restriction  was  struck  out  by  a  vote  of  22  to  16.  The 
House  then  adhered  to  its  amendment :  the  Senate  adhered  to 
its  rejection  :  and  so  the  bill  was  lost  between  the  two  Houses. 
This  was  at  the  end  of  a  short  session — the  sessions  terminating 
in  odd  years — when  the  end  of  the  third  day  of  March  is  the 
termination  of  the  session,  and  of  the  Congress.  It  would  be 
nine  months  before  Congress  met  again,  and  during  that  long  inter 
val  the  fire  kindled  in  Congress  must  continue  spreading — and 
did.  It  was  in  that  period  that  the  anxieties  of  patriots  rose  to 
the  highest  pitch — that  the  surviving  founders  of  the  Union 
began  to  feel  as  if  they  were  hearing  the  death-knell  of  the  Con 
stitution.  Many  of  them,  withdrawn  from  public  cares,  tran 
quil  at  home,  and  happy  in  the  belief  of  the  long  duration  of 
their  cherished  work,  were  alarmed  from  their  security,  and 
gave  vent  to  their  misgivings  in  letters  which  found  their  way 
to  the  public  eye.  Among  others,  Mr.  Madison,  who,  in  the 
ensuing  November,  shortly  before  the  inflamed  Congress  was  to 
meet  again — still  more  inflamed  by  contact  of  the  members 
with  their  constituents — wrote  that  letter  to  Mr.  Robert  Walsh, 
of  Philadelphia,  which  has  been  quoted  in  high  places  as  his 
opinion  against  the  Missouri  Compromise  :  that  letter,  so  quoted, 
in  which  the  word  "  compromise  "  does  not  occur ! — which  was 
written  four  months  before  the  Compromise  was  made !  and 
every  word  of  which  shows  that  it  was  only  applicable  to  the 
then  impending  and  absorbing  question  of  the  restriction  on  the 
State.  To  complicate  the  question,  and  render  it  still  more 
difficult  of  settlement,  was  the  attitude  beginning  to  be  assumed 
by  Missouri.  She  had  asked  Congress  for  an  enabling  act  to 
facilitate  the  holding  of  a  State  Convention.  It  was  deferential 
to  Congress  to  do  so,  but  not  imperative ;  and  being  denied, 
except  on  a  degrading  condition,  the  young  Territory  saw  her 


78  EXAMINATION   OF   THE 

right  under  the  treaty  with  France,  the  principles  of  the  Gov 
ernment,  and  the  ordinance  of  '87,  to  assemble  in  Convention, 
form  their  Constitution,  see  that  it  was  republican,  lay  it  before 
Congress,  and  stand  the  question  of  its  rejection,  because  it  did 
not  exclude  slavery.  There  was  a  short  way  for  her  to  sur 
mount  the  difficulty — to  put  in  a  prohibition,  to  satisfy  Con 
gress,  and  strike  it  out  when  the  Constitution  came  back,  to 
satisfy  herself.  There  could  be  no  legal  objection  to  that 
course ;  but  there  was  an  objection  to  it  of  morality  and  of 
policy ;  it  would  be  neither  moral  nor  politic  to  do  so  ;  and  the 
determination  was,  if  again  denied  the  enabling  act,  to  erect 
herself  into  a  State,  ask  admission  into  the  Union,  and  throw 
upon  Congress  the  entire  responsibility  of  refusing  to  admit  her. 
Such  an  attitude  was  impressing  a  new  emphasis  on  the  ques 
tion,  and  portending  a  crisis  of  inevitable  approach  and  fearful 
termination.  Thinking  men  looked  with  apprehension  to  the 
next  meeting  of  Congress  ;  and,  after  it  met — things  continuing 
to  grow  worse  until  the  Compromise  came,  with  balm  on  its 
wings,  to  heal  the  wounds  which  the  restriction  had  inflicted. 
But  before  I  speak  of  this  Compromise,  and  the  patriotic  men 
who  made  it,  there  is  another  measure  to  be  spoken  of,  showing 
still  more  strongly  the  dangers  of  the  country,  enhancing  still 
higher  its  merits,  and  illustrating  still  more  fully  the  constitu 
tional  distinction  between  States  and  Territories.  This  was  the 
Arkansas  question — the  question  of  restricting  the  Territory  of 
Arkansas  in  the  article  of  slavery — a  question  still  more  startling 
than  that  of  Missouri,  and  equally  portentous  at  the  time,  but 
overshadowed  in  the  greater  magnitude  and  longer  duration 
than  the  other ;  equally  deserving  of  public  attention,  but,  in  the 
impossibility  of  public  access  to  the  past  Congress  debates,  now 
unknown  to  the  public.  The  forthcoming  abridgment  of  these 
debates  will  make  them  accessible. 

The  case  was  this :  On  fixing  the  boundaries  for  the  new 
State  of  Missouri,  it  became  necessary  to  curtail  her  limits, 
before  co-extensive  with  the  whole  province  of  Louisiana  out 
side  of  the  State  of  Louisiana.  On  the  southern  side  of  the  new 
State  the  Territory  of  Arkansas  was  to  be  cut  off,  and  formed  into 
a  new  Territory.  It  extended  from  the  southern  limit  of  Mis 
souri — 36°  30' — to  the  Louisiana  State  line,  and  to  the  Texas,  or 
Mexican  boundary ;  in  fine,  to  all  the  territory  south  of  Mis- 


SUPREME  COURT'S  DECISION,  ETC.  79 

souri.  To  this  southern  Territory,  thus  appurtenant  to  the 
gouth — in  the  latitude  of  its  staple  productions — and  with  a 
slaveholding  population  upon  it — was  proposed  to  attach  the 
slavery  prohibition.  Cotemporaneously  with  the  report  of  the 
bill  to  enable  Missouri  to  take  steps  for  the  formation  of  a  State 
government,  was  another  reported  for  the  erection  of  the  Terri 
tory  south  of  it  into  a  new  territorial  government — Arkansas  by 
name,  as  covering  that  river.  And  as  soon  as  the  attempt  had 
succeeded  in  the  House  to  impose  the  slavery  restriction  on  the 
State  of  Missouri,  the  same  attempt  was  made  to  impose  it  on 
the  Territory  of  Arkansas.  Mr.  John  "W.  Taylor,  of  New  York, 
made  the  motion.*  This  motion  gave  rise  to  an  extended  de 
bate,  in  which  the  ablest  speakers  in  the  House,  from  both  sides, 
took  part ;  and  which  is  more  applicable,  and  authoritative,  than 
any  other  debate  that  ever  took  place  in  Congress,  to  the  ques 
tion  now  under  examination,  to  wit:  the  power  of  Congress 
over  its  territory,  (and  new  territory  at  that ;)  and  its  right  to 
legislate  upon  slavery  in  it,  and  to  admit  or  reject  it  as  deemed 
proper.  The  Arkansas  question  is  the  master  one  for  this  ex 
amination  ;  for  it  presents  the  territorial  question  alone,  unin 
fluenced  by  any  consideration  connected  with  a  State ;  and  be 
cause  it  applied  to  a  territory  so  far  south ;  and  which  was,  so 
far  as  the  admission  or  rejection  of  slavery  was  concerned,  the 
entire  province  of  Louisiana ;  for,  if  the  institution  was  excluded 
from  that  southern  part,  it  would  recoil  from  the  rest  of  itself, 
It  was,  therefore,  a  question  to  excite  the  slave  States  still  more 
than  the  Missouri  question  had  done,  and  to  stimulate  them  to 
the  use  of  the  strongest  objections  against  it.  The  strongest 
would  have  been  unconstitutionality !  yet  no  one  took  that  ob 
jection.  Expedient  grounds,  and  the  treaty  of  cession,  were  the 
highest  grounds  they  took;  and  there  were  able  men  in  the 
Government  then — both  in  the  Senate  and  the  House,  and  in 
the  Cabinet.  These  able  men,  and  zealous  for  the  South,  and 
stimulated  to  the  highest  exertions,  took  no  ground  under  the 
Constitution!  On  the  contrary,  they  admitted  the  constitu 
tional  right  of  Congress  to  do  as  it  deemed  right  on  the  question, 

*  It  was  in  these  words :  "  That  the  further  introduction  of  slavery,  or  involuntary 
servitude,  be  prohibited,  except  for  the  punishment  of  crimes,  whereof  the  party  shall 
have  been  duly  convicted.  And  that  all  children  born  within  the  State  after  the  ad 
mission  thereof  into  the  Union,  shall  be  free  at  the  age  of  twenty-five  years. 


80  EXAMINATION   OF   THE 

and  limited  their  opposition  to  expedient  objections.  Among 
these  was  Mr.  Louis  M'Lane,  of  Delaware,  an  able  and  zealous 
defender  of  the  rights  and  interests  of  the  slave  States,  though 
opposed  to  the  institution  of  slavery,  and  who  was  one  of  the 
first  to  reply  to  Mr.  Taylor's  proposition  to  restrict  the  Territory 
— repulsing  it  on  expedient  grounds,  and  making  the  first  sug 
gestion  of  a  policy  which  afterwards  ripened  into  the  Missouri 
Compromise.  He  said : 

"  He  would  yield  to  no  gentleman  in  the  House  in  his  love  of  free 
dom,  or  in  its  abhorrence  of  slavery  in  its  mildest  form.  His  earliest 
education,  and  the  habits  of  his  life,  were  opposed  to  the  holding  of 
slaves  and  the  encouragement  of  slavery.  At  the  same  time,  he  would 
yield  to  no  gentleman  in  the  House  in  his  regard  for  the  Constitution  of 
his  country,  and  for  the  peace,  safety,  and  preservation  of  the  Union  of 
these  States.  To  these  great  objects  all  minor  considerations  should 
give  way.  Beyond  this,  the  oath  he  had  taken,  as  a  member  of  the 
House,  forbade  him  to  go.  The  fixing  of  a  line  on  the  west  of  the  Mis 
sissippi,  north  of  which  slavery  should  not  be  tolerated,  had  always  been 
with  him  a  favorite  policy,  and  he  hoped  the  day  was  not  far  distant 
when,  upon  principles  of  fair  compromise,  it  might  constitutionally  be 
effected.  He  was  apprehensive,  however,  that  the  present  premature 
attempt,  and  the  feelings  it  had  elicited,  would  interpose  new  and  almost 
insuperable  obstacles  to  the  attainment  of  the  end." 

In  the  concluding  part  of  his  speech,  Mr.  M'Lane  returned 
to  the  idea  of  dividing  Louisiana  between  the  Free  and  the 
Slave  States — enforced  it  by  referring  to  the  happy  effects  in 
promoting  the  formation  of  the  Union,  of  a  similar  division  un 
der  the  ordinance  of  '87 — and  showed  that  Southern  and  West 
ern  members  had  already  avowed  the  same  policy.  Thus  : — 

"On  the  whole,  it  seems  to  me  that  we  have  no  right  to  impose  this 
restriction ;  and  that,  if  we  had,  it  would  be  useless,  impracticable,  and 
unavailing.  At  the  same  time,  I  do  not  mean  to  abandon  the  policy  to 
which  I  alluded  in  the  commencement  of  my  remarks.  I  think  it  but 
fair  that  both  sections  of  the  Union  should  be  accommodated  on  this 
subject,  with  regard  to  which  so  much  feeling  has  been  manifested.  The 
same  great  motives  of  policy  which  reconciled  and  harmonized  the  jar 
ring  and  discordant  elements  of  our  system,  originally,  and  which  enabled 
the  framers  of  our  Constitution  to  compromise  the  different  interests 
which  then  prevailed  on  this  and  other  subjects,  if  properly  cherished 


SUPREME    COURT'S    DECISION,    ETC.  81 

by  us,  will  enable  us  to  achieve  similar  objects.  If  we  meet  upon  prin 
ciples  of  reciprocity,  we  cannot  fail  to  do  justice  to  all.  It  has  already 
been  avowed  by  gentlemen  on  this  floor,  from  the  South  and  the  West, 
that  they  will  agree  upon  a  line  which  shall  divide  the  slaveholding  from 
the  non-slaveholding  States.  It  is  this  proposition  I  am  anxious  to 
effect ;  but  I  wish  to  effect  it  by  some  compact  which  shall  be  binding 
upon  all  parties  and  all  subsequent  legislatures — which  cannot  be 
changed,  and  will  not  fluctuate  with  the  diversity  of  feeling  and  of  senti 
ment  to  which  this  empire  in  its  march  must  be  destined.  There  is  a 
vast  and  immense  tract  of  country  west  of  the  Mississippi  yet  to  be  set 
tled,  and  intimately  connected  with  the  northern  section  of  the  Union, 
upon  which  this  compromise  can  be  effected.  Believing  as  I  do  that  the 
Constitution  and  the  compact*  before  mentioned  will  not  permit  us  to 
extend  our  policy  over  the  whole,  I  will  be  very  willing  to  take  as  great 
a  part  as  I  can  obtain ;  and  in  so  doing,  though  I  may  lament  that  the 
humane  policy  of  those  who  are  so  anxious  to  effect  this  end  cannot  be 
more  widely  diffused,  I  shall  enjoy  at  least  the  consciousness  of  having 
conformed  to  the  Constitution  of  the  country,  and  executed  the  national 
compacts  in  good  faith." 

Mr.  M'Lane  was  from  a  slave-holding  State,  and  acting  with 
the  South — I  should  rather  say  with  the  Union — on  this  occasion. 
He  was  of  course  in  communion  with  the  Southern-  and  Western 
members,  but  only  spoke  of  avowals  on  the  floor  when  he  alluded 
to  their  readiness  for  a  fair  compromise  on  the  principles  of  the 
ordinance  of  787.  Several  of  those  members  spoke — Mr.  Clay 
and  George  Robertson,  of  Kentucky;  Messrs.  Hugh  Nelson, 
James  Johnson,  John  Tyler,  and  Philip  P.  Barbour,  of  Virginia 
— but  their  speeches  are  not  reported,  only  noted.  The  author 
ity  of  Mr.  M'Lane,  however,  is  sufficient  for  the  fact  which 
stamps  the  Compromise,  (for  into  that  measure  the  suggestions 
of  Mr.  M'Lane  eventually  ripened,)  as  a  Southern  measure,  con 
ceived  and  shadowed  forth,  and  afterwards  embodied  as  such  ; 
and  also  shows  it  to  have  been  a  deliberate  and  considered 
measure — meditated  for  upwards  of  a  year  before  it  was  adopted. 

The  vote  was  taken  on  Mr.  Taylor's  proposition,  the  first 
clause  of  it  to  restrict  the  Territory,  and  it  was  handsomely  re 
jected — 68  to  80 — in  Committee  of  the  "Whole,  where  there  are 


*  The  stipulations  in  the  treaty  of  cession  on  which  the  province  was  ceded,  and 
which  constituted  a  compact  with  France. 

6 


82  EXAMINATION    OF   THE 

no  yeas  and  nays  ;  many  of  the  northern  members  voting  with 
the  slave-State  members,  who  were  in  an  absolute  minority  of 
the  House.  But  when  the  same  vote  came  to  be  repeated  in 
the  House,  where  there  are  yeas  and  nays,  it  was  as  near  even 
as  could  be  to  miss  it — TO  to  71 — the  proposition  being  only 
rejected  by  one  vote  ;  a  difference  in  the  voting  which  showed 
many  free-State  members  to  be,  in  their  private  feelings  and 
judgment,  what  they  could  not  openly  show  themselves  to  be. 
But  Mr.  Taylor's  proposition  consisted  of  two  parts  :  the  first 
prohibiting  the  future  introduction  of  slaves  into  the  Territory ; 
the  second  acting  upon  those  already  there,  and  emancipating 
the  slave  children  born  there,  at  the  age  of  twenty-five  years  ; 
and  this  part  of  the  proposition  was  carried — a  close  vote,  75  to 
73 — and  Mr.  Lewis  Williams,  of  North  Carolina,  being  one  of 
the  seventy-five.  His  name  being  low  down  in  the  alphabetical 
order,  and  the  vote  so  close  as  to  raise  the  apprehension  that  the 
clause  would  be  carried,  he  voted  with  the  affirmatives,  that, 
being  one  of  the  majority,  he  would  have  the  right  to  move  a 
reconsideration,  which  he  immediately  did,  and  lost  it  by  two 
votes,  some  members  having  come  in.  It  was  a  mistake  in  him  ; 
for  his  vote,  taken  from  the  affirmatives,  and  given  to  the  nega 
tives,  would  have  made  the  two  stand  74,  74  ;  and  the  support 
ers  of  the  proposition  holding  the  affirmative  of  the  question, 
and  not  getting  a  majority,  would  be  defeated,  and  that  without 
the  casting  vote  of  the  Speaker,  which  is  only  effective  when  he 
votes  with  the  affirmatives  ;  and  in  this  case,  he  would  go  with 
the  negatives.  The  case  now  looked  desperate.  To  emancipate 
the  slave  children  born  in  Arkansas,  was  equivalent  to  saying 
none  such  should  be  born  there,  or  that  they  should  be  carried 
away  before  arriving  at  the  liberating  age.  To  do  this  in 
Arkansas  was  equivalent  to  doing  it  in  all  Louisiana,  as  Arkan 
sas  covered  the  southern  half  of  the  province  ;  and  excluded 
from  there  it  would  stand  no  chance  to  go  north.  It  was  more 
extensive  in  its  effects  than  the  Missouri  State  restriction,  and 
more  odious  to  the  slaveholding  States,  because  further  south. 
The  question  would  immediately  come  up  again  upon  the  en 
grossment  of  the  bill,  and  ordering  it  to  be  read  a  third  time. 
The  exigency  called  for  the  cool  judgment,  the  urbane  deport 
ment,  and  captivating  address,  of  Mr.  Lowndes  ;  and  he  an 
swered  the  call.  Consulting  a  moment  with  some  friends,  Mr. 


ETC.  83 

Scott,  of  Missouri,  Mr.  "Weldon  ."N".  Edwards,  of  North  Carolina, 
and  Messrs.  Colston  and  Pindall,  of  Virginia,  he  took  his  course, 
and  moved  that  the  bill  be  laid  upon  the  table — saying,  at  the 
same  time,  that  to  prevent  surprise,  and  ensure  a  full  vote,  he 
would  himself  move  a  call  of  the  House  the  next  day,  at  twelve 
o'clock,  and  then  immediately  take  the  final  vote.  All  the 
Northern  members  whose  feelings  were  with  the  South,  imme 
diately  called  out  "  that  is  fair  ! "  and  the  bill  was  laid  upon  the 
table  by  a  good  vote. 

This  was  a  respite  for  the  night,  and  an  occasion  for  anxious 
consultation.  The  course  agreed  upon  was  a  decided  one — that 
a  motion  to  recommit  the  bill  to  a  select  committee,  with  instruc 
tions  to  strike  out  the  emancipation  clause,  should  be  made  ; 
and  that  Mr.  George  Robertson,  of  Kentucky,  the  reporter  of 
the  bill,  should  make  the  motion.  He  made  it.  The  vote  was 
even — 88  to  88 — and  the  motion  lost,  except  for  the  casting  vote 
of  the  Speaker,  (Mr.  Clay,)  which  was  promptly  given,  and  the 
bill  re-committed,  with  the  instruction.  The  select  committee 
was  Mr.  George  Robertson,  of  Kentucky,  Mr.  Lowndes,  of  South 
Carolina,  Messrs.  Nathaniel  Silsbee  and  Elijah  H.  Mills,  of  Mas 
sachusetts,  and  Mr.  "William  H.  Burwell,  of  Virginia.  The  in 
struction  was  quickly  complied  with,  and  the  bill  returned  to 
the  House,  when  the  question  was  to  concur  with  the  committee 
in  the  striking  out  which  they  reported.  The  vote  was — 89  for 
the  concurrence  ;  87  against  it.  So  that  the  question  was  car 
ried  by  a  majority  of  two,  which  was  only  a  difference  of  one 
man.  But  the  struggle  was  not  yet  over.  Mr.  Taylor  continued 
his  anti-slavery  motions,  which  were  finally  modified  into  the 
following : 

"  That  neither  slavery  nor  involuntary  servitude  shall  hereafter  be 
introduced  into  any  part  of  the  territories  of  the  United  States,  lying 
north  of  36  degrees  and  30  minutes  of  north  latitude." 

This  was  not  the  subsequent  famous  Missouri  Compromise  ; 
for  that  compromise  left  out  the  State  of  Missouri,  and  this  in 
cluded  it.  It  was,  in  fact,  the  continuation  of  the  line  which 
divides  Virginia  from  North  Carolina,  and  Kentucky  from  Ten 
nessee  ;  and  which  would  cross  the  Mississippi  and  continue  to 
the  Rocky  Mountains,  without  any  deflexion.  Mr.  Philip  P. 
Barbour,  of  Virginia,  replied  to  this  proposition.  He  said  : 


84  EXAMINATION   OF   THE 

"  He  was  opposed  to  Mr.  Taylor's  amendment,  and  to  all  others  of 
similar  character.  He  spoke  with  much  earnestness  against  the  proposi 
tion,  and  at  some  length,  as  partial  and  inexpedient — arguing  that  if  the 
principle  was  wrong  in  itself,  it  ought  not  to  be  withheld  from  one  part 
of  the  Territory  and  applied  to  another  :  that  it  was  legislating  partially 
by  applying  a  rule  to  the  one  portion,  and  a  different  rule  to  another 
portion  of  citizens  having  equal  rights  under  similar  circumstances.  If 
the  rule  was  wrong  at  the  25th  degree  of  latitude,  it  was  equally  so  at 
the  40th.  He  argued  that  it  was  as  impolitic  as  it  was  unjust,  to  draw 
this  line.  It  was  proper  to  let  a  future  Congress  act  on  it,  as  it  should 
then  seem  expedient ;  and  this  opinion,  as  well  as  others  which  he  ad 
vanced,  he  maintained  at  some  length." 

Such  was  the  reply  of  Mr.  Barbour,  one  of  the  ablest  lawyers, 
one  of  the  closest  adherents  of  State  rights,  and  of  constitutional 
strict  construction,  which  the  Virginia  school  of  lY98-'99  pro 
duced.  He  saw  much  wrong  in  Mr.  Taylor's  proposition — all 
the  injury  that  is  now  seen  in  preventing  slaveholders  in  re 
straining  southern  emigration — but  no  violation  of  the  Consti 
tution  ,  and  he  was  afterwards  a  justice  of  the  Supreme  Court 
of  the  United  States,  and  died  as  such.  His  objections  rose  no 
higher  than  to  the  class  of  inexpedient,  and  several  members 
concurred  with  him.  The  discussion  became  heated ;  some 
Northern  members  showed  themselves  indisposed  to  it ;  and  Mr. 
Taylor,  seeing  more  opposition  than  he  had  expected,  withdrew 
his  proposition,  saying  it  was  not  probable  any  line  would  be 
agreed  upon  by  the  House,  or  any  compromise  of  opinion 
effected.  The  bill  was  then  read  a  third  time — sent  to  the 
Senate  for  concurrence — concurred  in  there  ;  and  Arkansas  be 
came  a  separate  Territory,  free  from  slavery  restriction. 

I  have  deemed  it  right  to  give  this  detailed  account  of  the 
attempt  to  exclude  slavery  from  Arkansas ;  and  to  show  by 
what  narrow  chances  that  attempt  was  defeated.  It  shows 
more  clearly  than  any  thing  else — more  clearly  than  the  Mis 
souri  controversy  itself — the  danger  which  beset  the  Union  at 
that  time,  arid  greatly  enhances  the  merits  of  that  compromise, 
which,  a  year  afterwards,  averted  that  danger.  It  also  shows 
the  first  germination  of  the  idea  of  that  compromise — that  it 
came  from  Mr.  Louis  M'Lane,  with  the  sanction  of  Southern 
members,  and  took  the  compromise  line  in  the  ordinance  of 
'87  for  its  guide  and  model. 


SUPREME  COURT'S  DECISION,  ETC.  85 

I  return  to  the  Missouri  bill,  and  to  the  movements  of  which 
it  continued  to  be  the  subject  in  the  two  Houses.  The  session 
of  1S1S-'19,  had  terminated,  leaving  the  bill  lost  in  the  disa 
greement  of  the  two  Houses.  It  was  the  short  session,  termi 
nating  the  3d  of  March ;  the  long  recess  of  nine  months  to 
intervene  before  Congress  met  again ;  and,  in  the  mean  time, 
the  question  becoming  more  aggravated  and  inflamed  from  the 
daily  inflammatory  appeals  to  the  public  mind  :  popular  meet 
ings,  harangues,  newspaper  publications,  denunciations,  violent 
resolves.  By  the  time  Congress  met  in  December,  the  whole 
country  was  aroused,  the  geographical  line  fully  developed,  and 
the  two  halves  of  the  Union  arrayed  against  each  other.  Things 
were  far  worse  than  at  the  end  of  the  last  session.  Public 
opinion  at  home,  and  town-meeting  resolves,  were  bearing 
down  the  moderate  members  from  the  free  States  who  opposed 
the  restriction,  or  even  favored  compromise.  At  the  same  time 
the  Territory  of  Missouri  had  taken  its  stand — determined  not 
to  be  restricted  ;  and  it  was  well  known  that  the  slave  States 
would  stand  by  her  in  a  body.  So  dark  an  hour  had  never 
been  seen  for  the  Union  as  at  the  commencement  of  this  session 
— 1819-'20  ;  and  that  darkness  continued  to  deepen  during  three 
agonizing  months.  It  was  during  this  time  that  the  whole 
country  became  convulsed,  and  patriots  disheartened,  and  when 
many  of  them,  in  letters  now  extant,  gave  vent  to  their  mis 
givings  and  despair.  It  was  during  this  time  that  Mr.  Madison 
wrote  that  letter,  in  reply  to  Mr.  Walsh,  wholly  directed  against 
restricting  the  State  of  Missouri,  which  has  been  so  strongly 
applied  to  the  compromise — not  then  broached.  And  it  was 
during  this  time  that  our  Congress,  profoundly  penetrated  with 
a  sense  of  the  public  danger,  exhibited  all  the  varieties  of  fervid 
and  patriotic  eloquence — close  reasoning,  calm  argument,  im 
passioned  declamation,  gorgeous  elocution :  and  all  with  the 
impressive  earnestness  of  a  real  contest  involving  the  fate  of  the 
country.  And  it  wras  now  that  Pinkney,  of  Maryland,  delivered 
that  great  speech  which  consummated  his  oratorical  fame,  and 
which  was  worthy  to  call  forth  all  his  powers ;  for  he  was 
speaking  of  that  Union  which  patriot  heroes  had  formed,  and 
which  it  now  required  patriot  heroes  to  save. 

In  this  state  of  the  public  mind  Congress  met,  December, 
1819.  Bills  to  enable  the  Territory  of  Missouri  to  hold  a  con- 


86  EXAMINATION    OF    THE 

vention  to  form  a  State  government,  were  early  introduced  into 
eacli  House ;  and  the  friends  of  compromise  in  the  free  States, 
who  were  still  able  to  follow  their  inclinations,  were  vigilant 
and  ready,  and  preoccupied  the  ground  with  their  conciliatory 
propositions.  Mr.  Storrs,  of  New  York,  always  respectable  and 
sometimes  grand  in  debate,  and  well  disposed  to  do  justice  to 
the  South,  offered  a  proposition  upon  the  basis  of  dividing  the 
whole  territory  about  equally  between  the  two  classes  of  States ; 
but  he  proposed  the  parallel  of  38  degrees — which  would  not 
suit  the  friends  of  Missouri,  and  came  to  nothing.  Mr.  Thomas, 
of  the  Senate,  from  Illinois,  also  friendly  to  the  slave  States, 
proposed  a  compromise  upon  the  same  principle,  but  on  a  dif 
ferent  line — 36°  30',  exclusive  of  Missouri :  being  the  same  that 
was  eventually  adopted.  Each  House  had  a  bill  of  its  own,  and 
both  were  at  work  on  the  same  subject,  at  the  same  time  :  for, 
in  fact,  nothing  else  could  be  attended  to  in  Congress,  nor 
talked  of  in  the  country.  The  friends  of  compromise  had  taken 
the  advance  in  each  House ;  but  their  pacific  propositions  were 
quickly  superseded,  and  lost  sight  of,  by  the  introduction  of 
others  of  a  different  character.  Mr.  Burrill,  of  Rhode  Island, 
in  the  Senate,  and  Mr.  John  "W.  Taylor,  of  New  York,  in  the 
House,  respectively  proposed  the  imposition  of  the  restriction 
upon  the  State  of  Missouri ;  and,  from  that  time,  a  long  interval 
before  conciliatory  measures  could  be  admitted  to  any  attention. 
It  was  the  17th  of  February  before  a  vote  was  obtained  in  the 
Senate  on  Mr.  Thomas's  amendment — when  it  was  carried  by  a 
vote  of  34  to  10.  But  this  vote  included  several  Senators  who 
would  not  vote  for  the  bill  when  so  amended ;  so  that,  on 
ordering  the  bill  to  a  third  reading,  the  vote  was  21  to  20. 
Thus,  in  the  Senate  the  bill  stood  as  the  friends  of  Missouri 
wished  it ;  to  wit :  the  restriction  rejected,  and  the  compromise 
accepted.  But  this  bill  would  stand  no  chance  in  the  House  in 
a  trial  of  strength  there  :  address  and  management  alone  could 
save  her  :  and  there  was  room  for  something  to  be  done  in  that 
way.  Massachusetts  had  divided  herself  to  form  the  State  of 
Maine :  it  was  determined  in  the  Senate  to  unite  the  two,  (Mis 
souri  and  Maine,)  and  keep  them  together  :  that  was  one  hold 
upon  the  House.  Then  there  was  another.  The  Missouri  re 
striction  bill,  passed  by  the  House,  would  come  to  the  Senate 
for  concurrence ;  it  was  determined  there  to  amend  it  by 


ETC.  87 

striking  out  the  restriction,  and  inserting  the  Thomas  Compro 
mise  ;  and  that  was  a  second  hold  upon  that  body ;  and  both 
were  firmly  seized.  Missouri  and  Maine,  for  their  admission, 
were  put  into  one  bill,  and  would  go  down  to  the  House,  united 
— to  sink  or  swim  together.  The  Missouri  House  bill  would 
carry  back  the  compromise,  in  place  of  the  restriction  which  it 
brought  up  ;  and  thus,  address  and  management,  laying  hold 
of  coincident  circumstances,  were  working  well  for  the  settle 
ment  of  the  question,  and  for  the  harmony  and  preservation  of 
the  Union.  It  was  the  second  of  March  when  the  vote  was 
obtained  on  the  bill  with  Mr.  Thomas's  amendment,  and  when 
it  was  carried  by  a  vote  of  almost  two  to  one — 27  to  15.*  All 
these  affirmative  votes  affirmed  the  constitutionality,  and  the 
expediency  of  the  compromise  ;  and  it  was  an  imposing  list  of 
names.  The  wrhole  negative  vote  affirmed  the  same  constitu 
tionality  ;  for  it  was  given  on  the  principle  of  total  exclusion  of 
slavery  from  the  whole  province  of  Louisiana. 

The  question  was  now  in  the  House,  and  the  restriction  on 
the  State  having  been  greatly  debated,  and  the  two  Houses 
become  mutually  impeded  by  the  state  of  their  respective  bills 
— for,  while  each  could  check  the  other,  neither  could  carry  its 
own  —  some  of  the  most  strenuous  of  the  restrictionists  had 
begun  to  relax,  and  to  hold  the  language  of  conciliation,  and 
to  propose  the  application  of  the  restriction  to  Territories  alone. 
In  this  sense  Mr.  John  W.  Taylor  spoke,  and  acted,  and  took 
the  initiative  for  his  party.  (It  was  on  the  14th  of  December, 
1819.)  He  said : 

"  He  rose  to  invite  the  attention  of  the  House  to  a  subject  of  very 
great  moment.  The  question  of  slavery  in  the  territories  of  the  United 
States  west  of  the  Mississippi,  it  was  well  known,  had  at  the  last  session 
of  Congress  excited  feelings,  both  in  the  House  and  out  of  it,  the  recur- 


*  The  detail  of  the  affirmative  vote  was :  Messrs.  James  Barbour,  of  Vir. ;  James 
Brown,  of  Lou. ;  Eaton,  of  Tenn. ;  Ninian  Edwards,  of  111. ;  John  Elliott,  of  Geo. , 
Gaillard,  of  S.  C. ;  Horsay,  of  Del.  ;  William  Hunter,  of  R.  I.  ;  R.  M.  Johnson,  of 
Ken. ;  Henry  Johnson,  of  Lou.  *  William  Rufus  King,  of  Ala. ;  James  Lanman,  of 
Conn. ;  Walter  Leake,  of  Mppi. ;  Edward  Lloyd,  of  Md. ;  William  Logan,  of  Ken. ; 
Nathaniel  Macon,  of  N.  C.  ;  John  F.  Parrott,  of  N.  II. ;  William  Pinkney,  of  Md. ; 
James  Pleasants,  of  Vir. ;  William  Smith,  of  S.  C. ;  Montford  Stokes,  of  N.  C. ;  Jesse 
B.  Thomas,  of  111. ;  Nicholas  Van  Dyke,  of  Del. ;  John  W.  Walker,  of  Ala. ;  Freeman 
Walker,  of  Geo. ;  Thomas  H.  Williams,  of  Mppi. ;  and  John  Williams,  of  Tenn. 


88  EXAMINATION   OF   THE 

rence  of  which  he  sincerely  deprecated.  All  who  love  our  country,  and 
consider  the  Union  of  these  States  as  the  ark  of  its  safety,  must  view 
with  deep  regret  sectional  interests  agitating  our  national  councils. 
He  could  not  himself,  nor  would  he  ask  others,  to  make  a  sacrifice  of 
principle  to  expediency.  He  could  never  sanction  the  existence  of 
slavery  where  it  could  be  excluded,  consistently  with  the  Constitution 
and  public  faith.  But  it  ought  not  to  be  forgotten  that  the  American 
family  is  composed  of  many  members :  if  their  interests  are  various, 
they  must  mutually  be  respected ;  if  their  prejudices  are  strong,  they 
must  be  treated  with  forbearance.  He  did  not  know  whether  concilia 
tion  was  practicable,  but  he  considered  the  attainment  worthy  of  an 
effort.  He  was  desirous  that  the  question  should  be  settled  in  that 
spirit  of  amity  and  brotherly  love,  which  carried  us  through  the  perils 
of  the  Revolution,  and  produced  the  adoption  of  our  Federal  Constitution. 
If  the  resolution  he  was  about  to  introduce  should  be  sanctioned  by  the 
House,  it  was  his  purpose  to  move  a  postponement  of  the  Missouri  bill 
to  a  future  day,  that  this  interesting  subject,  in  relation  to  the  whole 
Western  Territory,  may  be  submitted  to  the  consideration  of  a  committee." 

Mr.  Taylor  then  introduced  the  following  resolution : — 

"Resolved,  That  a  Committee  be  appointed  to  inquire  into  the  ex 
pediency  of  prohibiting  by  law  the  introduction  of  slaves  into  the  Ter 
ritories  of  the  United  States  west  of  the  Mississippi." 

This  resolution,  limited  to  Territories,  and  presented  as  a  feeler 
to  compromise,  was  received  in  the  spirit  in  which  it  was  made — as 
a  proposition  for  a  compromise ;  and,  therefore,  to  be  kindly  en 
tertained.  But  it  was  not  adopted  in  haste,  but,  on  the  motion 
of  Mr.  Strother,  of  Virginia,  laid  upon  the  table  until  the  next 
day,  "to  give  time  for  reflection."  The  next  day  it  was  taken  up, 
and,  as  the  result  of  the  night's  reflection  was  adopted  the  next 
day,  without  debate,  and,  without  division !  a  strong  symptom 
that  no  one  in  the  House,  at  that  time,  saw  any  thing  unconsti 
tutional  in  legislating  upon  slavery  in  Territories.  A  committee 
of  seven  was  appointed : — Messrs.  JohnAV.  Taylor ;  Livermore,  of 
N".  II.;  P.  P.  Barbour,  of  Virginia;  Lowndes;  Fuller,  of  Mass.  ; 
Hardin,  of  Kentucky  ;  Cuthbert,  of  Georgia.  The  committee 
could  not  agree  upon  a  plan,  and  would  not  report  a  mere 
majority  proposition  as  a  basis  of  compromise ;  and,  upon  their 
own  request,  were  discharged  from  the  consideration  of  the 


SUPREME  COURT'S  DECISION,  ETC.  89 

subject.  Mr.  Taylor  then  introduced  a  peremptory  resolution, 
that  a  committee  be  appointed,  with  instructions  to  bring  in  a 
bill  prohibiting  the  further  admission  of  slaves  into  the  Terri 
tories  of  the  United  States  west  of  the  river  Mississippi.  In  com 
mendation  of  this  resolution,  Mr.  Taylor  made  the  following  re 
markable  declaration : — "  He  believed  there  was  no  member — he 
knew  of  none — who  doubted  the  Constitutional  power  of  Congress 
to  impose  such  a  restriction  on  the  Territories ;  and  the  only 
question  which  the  bill  could  present  was  one  of  expediency." 
This  was  a  remarkable  declaration,  addressing  itself  to  every 
member  of  the  House,  and  calling  for  immediate  rectification, 
if  there  was  any  mistake  in  it.  There  was  no  remark  made  upon 
it,  one  way  or  the  other.  The  declaration  of  Mr.  Taylor  must 
then  be  taken  to  be  true — that  there  was  not  a  member  of  the 
House  who  did  not  hold  that  Congress  had  the  right  to  abolish 
slavery  in  the  Territories.  Other  parts  of  the  resolution  were 
remarked  upon;  and,  without  being  acted  upon,  it  went  to  its 
place  on  the  calendar,  not  to  be  reached  until  after  the  Missouri 
bill  should  be  disposed  of,  and  in  the  adjustment  of  which  the 
Southern  and  "Western  members  preferred  that  the  territorial 
question  should  be  settled. 

This  was  the  27th  of  December.  It  was  a  month  afterwards 
— just  a  month  (26th  January) — before  the  subject  was  mention 
ed  again,  when  it  came  up  on  a  motion  from  Mr.  Storrs,  of  New 
York,  to  amend  the  bill,  (that  of  the  House,)  by  inserting  a  com 
promise  clause — nearly  the  same  which  afterwards  came  down 
from  the  Senate.  It  was  on  stating  his  understanding  of  the 
effect  of  that  motion,  that  General  Smith  of  Maryland  declared 
the  power  of  Congress  to  be  unlimited  and  supreme  in  the 
Territories — a  declaration  which  no  one  impugned.  These  were 
his  words — all  that  he  said  on  the  point :  — 

"  He  rose  principally  with  a  view  to  state  his  understanding  of  the 
proposed  amendment ;  viz. : — That  it  retained  the  boundaries  of 
Missouri,  as  delineated  in  the  bill — that  it  prohibited  the  admission  of 
slaves  west  of  the  west  line  of  Missouri,  and  north  of  the  north  line — 
that  it  did  not  interfere  with  the  Territory  of  Arkansas,  or  the  uninhab 
ited  land  west  thereof.  With  this  understanding,  he  thought  the  prop 
osition  not  exceptionable,  but  doubted  the  propriety  of  its  forming  a 
part  of  this  bill.  He  considered  the  power  of  Congress  over  the  Terri 
tory  as  supreme,  unlimited,  before  the  admission — that  Congress  could 


90  EXAMINATION   OF   THE 

bestow  on  its  Territories  any  restrictions  that  it  thought  proper,  and  the 
people,  when  they  settled  therein,  did  so  under  a  knowledge  of  the  re 
striction." 

Now,  General  Smith  was  not  a  lawyer,  but  lie  was  a  man  of 
vigorous  common  sense,  of  close  business  habits,  of  a  thinking 
turn  of  mind,  and  large  political  and  legislative  experience — 
having  been  in  Congress  from  the  beginning  of  Washington's 
administration.  The  opinion  of  such  a  man,  upon  the  legislative 
powers  of  Congress,  is  always  something,  and  in  this  case  his  opin 
ion  was  weighty — for  it  was  decisive,  and  no  one  impugned  it. 

There  was,  in  fact,  no  question  raised  on  the  point  of  power ; 
no  one  disputed  it,  and  no  one  argued  it ;  but,  from  time  to 
time,  different  members  expressed  their  opinions,  chiefly  in  illus 
tration  of  the  difference  between  States  and  Territories,  and  the 
power  of  Congress  over  them,  or  in  elucidation  of  clauses  in  the 
Constitution.  Thus  Mr.  M'Lane,  of  Delaware  :  — 

"  No  little  reliance  has  been  placed  by  the  honorable  mover  upon 
the  clause  in  the  Constitution,  vesting  in  Congress  a  power  to  dispose 
of,  and  make  all  needful  rules  and  regulations  respecting  the  territory, 
or  other  property  of  the  United  States.  I  do  not  propose  to  enter 
minutely  into  the  inquiry,  whether  the  power  of  Congress  to  establish  a 
Territorial  Government  is  derived  from  this  clause.  I  incline  to  the 
opinion  that  it  is  not.  The  power  here  conferred  is  a  power  to  dispose 
of,  and  make  needful  rules  respecting  the  property  of  the  United  States. 
It  was  designed,  I  think,  to  authorize  the  sale  of  the  land  for  purposes 
of  revenue,  and  all  regulations  which  might  be  deemed  necessary  for  its 
proper  disposition ;  or  to  convert  it  to  other  public  objects  disconnected 
with  sale  or  revenue — to  retain  this  power  even  after  the  territory 
had  assumed  the  State  government,  and  perhaps  to  divert  from  the  State 
government  the  right  of  taxing  it,  as  it  would  do  the  property  of  indi 
viduals.  It  is  silent  as  to  the  people;  and  their  slaves  are  the  property 
of  their  owners,  and  not  of  the  government.  The  right  of  governing  a 
Territory  is  clearly  incident  to  the  right  of  acquiring  it.  It  would  be 
absurd  to  say  that  the  government  might  purchase  a  Territory,  with  a 
population  upon  it,  and  not  have  the  power  to  give  them  laws  :  but  from 
whatever  source  the  power  is  derived,  I  admit  it  to  be  plenary,  so  long 
as  it  continues  in  a  state  of  territorial  dependence,  but  no  longer.  I  am 
willing  at  any  time  to  execute  this  power.  The  condition  of  the  people 
of  a  Territory  is,  to  be  governed  by  others — of  a  State,  to  govern  them 
selves." 


SUPREME   COURT'S   DECISION,   ETC.  91 

So  spoke  Mr.  M'Lane,  a  lawyer,  and  one  of  the  ablest  men  in 
Congress.  In  that  part  of  his  understanding,  of  the  "  needful 
rules  and  regulation  "  clause,  he  is  coincident  with  the  late  Opin 
ion  of  the  Supreme  Court,  but  diametrically  opposed  to  them 
in  the  derivation  of  the  power  of  Congress  over  Territories — 
they  construing  it,  generally,  out  of  the  Constitution — he  deriv 
ing  it  direct  from  sovereignty  and  ownership.  And  in  his 
whole  opinion  of  this  power  as  being  plenary  and  absolute, 
whether  derived  from  sovereignty,  or  from  the  quoted  clause  in 
the  Constitution,  he  so  entirely  coincides  with  the  former  opin 
ions  of  the  Supreme  Court  as  twice  delivered  by  Chief  Justice 
Marshall,  (heretofore  quoted,)  that  it  would  be  held  to  be  a  rep 
etition  of  those  decisions  w^ere  it  not  for  the  fact  that  it  was 
before  them. 

Nearly  to  the  same  effect  was  the  opinion  of  General  Alex 
ander  Smyth,  of  Virginia,  and  one  of  the  best  legal  and  most  in 
vestigating  minds  in  Virginia,  and  who,  in  the  progress  of  the 
Missouri  Bill,  expressed  himself  thus  : — 

"  It  has  been  contended  that  this  clause  (the  needful  rules  and  regu 
lation  clause)  gives  a  power  of  legislation  over  persons  and  private  prop 
erty  within  the  Territories  of  the  United  States.  The  clause  obviously 
relates  to  the  territory  belonging  to  the  United  States  as  property  only- 
The  power  given  is  to  dispose  of,  and  make  all  needful  regulations 
respecting  the  territorial  property,  or  other  property  of  the  United 
States,  and  Congress  Lave  power  to  pass  all  laws  necessary  and  proper 
to  the  exercise  of  that  power.  This  clause  speaks  of  the  territory  as 
property,  as  a  subject  of  sale.  It  speaks  not  of  the  jurisdiction.  That 
the  Convention  considered  sufficiently  provided  for  by  the  Ordinance  of 
Congress.  This  clause  contains  no  grant  of  power  to  legislate  over  per 
sons  and  private  property  within  a  Territory.  A  power  to  dispose  of, 
and  make  all  needful  regulations  respecting  the  property  of  the  United 
States,  is  very  different  from  a  power  to  legislate  over  the  persons  and 
property  of  the  citizens.  AVhen  it  was  the  intention  of  the  Convention 
that  the  Constitution  should  convey  to  Congress  power  to  legislate  over 
persons  and  private  property,  they  expressed  themselves  in  terms  not 
doubtful.  Thus,  they  said,  Congress  shall  have  power  to  exercise  exclu 
sive  legislation  in  all  cases  whatsoever  within  the  ten  miles  square.  But 
no  such  power  to  legislate  over  the  Territories  is  granted." 

Mr.  Smyth  is  very  distinct  in  his  exposition  of  the  meaning 
of  this  clause — the  needful  rules  and  regulation  clause.  He 


yz  EXAMINATION    OF   THE 

considers  that  clause  as  only  applying  to  the  management  of 
property,  and  that  limited  to  the  property  of  the  United  States. 
He  considers  it  no  grant  of  the  jurisdiction  or  right  of  govern 
ment:  that,  to  wit,  jurisdiction  and  government,  being  provided 
for  by  the  Ordinance.  This  is  historically,  as  well  as  logically 
true.  The  Ordinance  and  the  Constitution  were  each  parts,  and 
essential  parts  of  the  same  system — made  at  the  same  time,  by 
the  same  men,  (it  maybe  said,)  and  for  the  same  purpose,  that  of 
founding  and  settling  the  Union.  Each  was  necessary — the 
Ordinance  for  the  government  of  the  Territories ;  the  Constitu 
tion  for  the  government  of  the  States.  It  was  necessary  to  settle 
the  political  condition  of  the  Territories,  and  the  Ordinance  was 
their  Constitution.  It  framed  their  Governments,  and  the  Con 
stitution  had  nothing  to  do  with.  them.  This  is  what  Mr. 

O 

Smyth  means,  and  what  history,  and  the  obvious  meaning  of 
language,  justifies  him  in  saying,  to  wit,  that  the  needful  rule 
and  regulation  clause  did  not  confer  jurisdiction,  and  give  the 
right  of  government  to  the  Territories,  because  that  had  been  pro 
vided  for  ~by  the  Ordinance.  The  Ordinance  was  made  for  the 
Territory  of  the  United  States,  then  in  possession  or  expectation. 
It .  was  not  made  under  the  Articles  of  Confederation,  for 
there  was  no  authority  in  those  articles  to  make  it ;  it  was 
not  made  under  the  Constitution,  for  it  was  made  before  it.  By 
what  authority,  then,  was  it  made  ?  By  right  of  ownership? 
both  of  soil  and  jurisdiction,  and  by  virtue  of  the  compacts  with 
the  ceding  States  ;  and  the  new  Territory  is  governed  in  the  same 
way — not  by  virtue  of  any  thing  in  the  Constitution,  but  by 
virtue  of  proprietary  rights  of  soil  and  jurisdiction — as  an  inci- 
.dent  to  its  acquisition — and  by  virtue  of  the  compacts  with 
France  in  the  treaty  of  the  cession.  And  this  is  what  Mr. 
Smyth  says  in  this  most  pregnant  passage  of  his.  A  right  to 
use  the  soil  as  property,  and  to  govern  the  people  politically, 
until  prepared  to  govern  themselves,  necessarily  resulted  from 
these  premises ;  and  the  right  of  government  was  full  and  com 
plete,  limited  only  by  the  compacts  and  the  treaty.  The  ordi 
nance  of  '87  compromised  the  slavery  question  in  Territories  by 
dividing  them  about  equally  between  the  free  and  the  slave 
States ;  the  Congress  of  1820  had  the  same  right  to  compromise, 
and  were  under  the  same  inducement  to  do  so ;  and  did  it. 
I  say  the  same  inducement,  and  mean  what  I  say  ;  for  the  com- 


SUPREME  COURT'S  DECISION,  ETC.  93 

promise  of  '87  made  the  Union,  and  the  compromise  of  1820 
saved  it. 

I  hasten  to  the  actual  compromise. 

The  debate  in  the  House  was  upon  the  restriction  of  the  State 
of  Missouri,  moved  by  Mr.  John  "W.  Taylor,  and  most  bitterly 
contested.  It  was  not  until  the  last  day  of  February  that  the 
vote  was  obtained  on  the  motion  of  Mr.  Taylor,  and  that  it  was 
carried  by  94  to  86  ;  and  the  bill  was  passed  the  next  day  by  a 
vote  nearly  the  same.  In  the  mean  time  the  bill  for  the  admis 
sion  of  Maine  had  returned  from  the  Senate,  with  the  Missouri 
bill  attached  to  it,  and  embracing  the  compromise  proposition 
moved  by  Mr.  Thomas.  The  House  promptly  disagreed  to  these 
amendments,  and  a  committee  of  conference  was  appointed, 
which  came  in  with  a  compromise  proposition — that  the  Senate 
should  recede  from  their  amendment  adding  Missouri  to  Maine, 
and  the  House  give  up  the  restriction,  and  take  the  compromise 
in  its  place.  Pending  this  conference,  the  Missouri  House  bill 
returned  from  the  Senate  with  the  restrictions  struck  out,  and  the 
compromise  inserted — the  same  which  Mr.  Storrs  offered  in  the 
House,  and  Mr.  Thomas  in  the  Senate.  The  compromise  was 
then  in  both  bills — the  one  from  the  Senate,  and  the  one  from 
the  House ;  and  the  struggle  became  close  and  intense, — on  one 
side,  to  strike  out  the  compromise — on  the  other  to  retain  it ;  for 
that  question  included  in  its  result  the  fate  of  the  bill,  and  with 
it  the  fate  of  the  Union.  The  esteemed  Mr.  Lowndes,  always 
listened  to  with  deference  by  the  House,  was  the  first  to  speak, 
and  earnestly  for  the  compromise ;  but  the  reported  debates 
only  give  briefly  the  points  of  his  speech,  thus  : — 

"  Mr.  Lowndes  spoke  briefly  in  support  of  the  compromise  recom 
mended  by  the  Committee  of  Conference,  and  urged  with  great  earnest 
ness  the  propriety  of  a  decision  which  would  restore  tranquillity  to  the 
country ;  which  was  demanded  by  every  consideration  of  discretion,  of 
moderation,  of  wisdom,  and  of  virtue." 

Mr.  Kinsey,  of  New  Jersey,  a  Free  State  member  who  had 
voted  steadily  through  two  sessions  for  the  restriction,  was  too 
seriously  impressed  with  the  dangers  of  the  country  to  continue 
that  vote  any  longer.  He  determined  to  change  his  vote,  and 
gave  his  reasons  publicly  for  it.  He  said  : — 


94:  EXAMINATION   OF   THE 

c;  A  period  has  now  arrived  when  it  becomes  necessary  to  close  this 
protracted  debate,  and,  as  I  shall  vote  for  the  compromise  offered  by 
the  Senate,  it  is  proper  to  state  my  reasons  for  so  doing.  We  have  ar 
rived  at  an  awful  period  in  the  history  of  our  empire,  when  it  behooves 
every  member  of  this  House  now  to  pause,  and  to  consider  that  on  the 
next  step  we  take  depends  the  fate  of  unborn  millions.  I  firmly  believe 
that  on  the  question  now  before  us  rest  the  highest  interests  of  the 
whole  human  family.  Now,  sir,  is  to  be  tested  whether  this  grand 
and  hitherto  successful  experiment  of  free  government  is  to  continue, 
or,  after  more  than  forty  years'  enjoyment  of  the  choicest  blessings  of 
Heaven  under  its  administration,  we  are  to  break  asunder  on  a  dispute 
about  the  division  of  territory.  Gentlemen  of  the  majority  have  treated 
the  idea  of  a  disunion  with  ridicule  ;  but  to  my  mind,  it  presents  itself 
in  all  the  horrid,  gloomy  features  of  reality  :  and  when  we  unfold  the 
volume  of  past  ages,  and,  in  the  history  of  man,  trace  the  rise  and  fall 
of  governments,  we  find  trifles,  light  as  air  compared  to  this,  dissolving 
the  most  powerful  confederacies,  and  overturning  extensive  empires. 
If  we  inquire  what  causes  operated  to  destroy  the  Amphyctionic  League, 
or  dissolve  the  German  Confederacy,  in  almost  every  case  we  find  ques 
tions  of  territorial  jurisdiction,  and  what,  for  ages,  has  deluged  Europe 
in  blood  ?  disputes  concerning  territorial  rights.  On  questions  of  this 
high  and  mighty  import,  it  behooves  us  to  make  our  approaches  with 
the  most  awful  consideration.  What  at  this  period  is  a  matter  of  con 
jecture,  may  in  a  short  time  become  real  history.  It  is  not  a  question 
like  that  heretofore,  in  which  a  diversity  of  opinion  commingled  in  the 
same  society  where  a  division  of  sentiment,  on  subjects  political,  spread 
itself  over  the  whole  Union ;  but  on  this  question  the  division  is,  not 
of  individuals,  but  of  States — and  of  States  almost  equally  divided. 
And  what  is  the  case  now  before  us  ?  Opinions  from  which  every  gen 
tleman,  a  few  months  past,  would  have  recoiled  with  horror,  as  treason 
to  imagine,  are  now  unhesitatingly  threatened.  That  which  had  no 
ideal  existence,  engendering  as  this  discussion  progresses,  assumes  a 
positive  shape  ;  and  mixing  with  this  unpropitious  debate,  presents  itself 
in  all  the  dreadful  appearances  of  reality.  May  God,  in  mercy,  inspire  us 
with  a  conciliatory  spirit,  to  disperse  its  fury  and  dispel  its  terrible  con 
sequences." 

Other  members  from  Free  States,  like  Mr.  Kinsey,  changed 
their  votes,  and  gave  their  reasons  for  doing  so — among  others, 
Mr.  Stephens,  of  Connecticut.  Thus  : — 

"  If  gentlemen  are  in  favor  of  any  compromise,  it  is  a  fit  time  to 
discuss  that  subject,  and  see  if  any  can  be  hit  on  that  will  give  general 


SUPREME  COURT'S  DECISION,  ETC.  95 

satisfaction.  "We  have  now  arrived  at  a  point  at  which  every  gentleman 
agrees  something  must  be  done.  A  precipice  lies  before  us,  at  which 
perdition  is  inevitable.  Gentlemen  on  both  sides  of  this  question,  and 
in  both  Houses,  in  doors  and  out  of  doors,  have  evinced  a  determination 
that  augurs  ill  of  the  high  destinies  of  this  country  !  and  who  shall  not 
tremble  for  the  consequences  ?  I  do  not  pretend  to  say  that,  in  just 
five  calendar  months  your  Union  will  be  at  an  end ;  but  I  do  say,  and 
for  the  verity  of  the  remark  cite  the  lamentable  history  of  our  own 
time,  that  the  result  of  a  failure  to  compromise  at  this  time,  in  the  way 
now  proposed,  or  in  some  other  way  satisfactory  to  both,  would  be  to 
create  ruthless  hatred,  irradicable  jealousy,  and  a  total  forge  tfulness  of 
the  ardor  of  patriotism,  to  which,  as  it  has  heretofore  existed,  we  owe, 
under  Providence,  more  solid,  rational  glory  and  social  happiness,  than 
ever  before  was  possessed  by  any  people,  nation,  kindred,  or  tongue, 
under  Heaven." 

Amidst  such  appeals  the  eventful  question  was  called,  and 
resulted  134  for  the  compromise  to  42  against  it — a  majority 
of  three  to  one,  and  eight  over.  Such  a  vote  was  a  real  com 
promise  !  a  surrender  on  the  part  of  the  restrictionists,  of  strong 
feeling  to  a  sense  of  duty  to  the  country !  a  settlement  of  a  dis 
tracting  territorial  question  upon  the  basis  of  mutual  concession, 
and  according  to  the  principles  of  the  ordinance  of  1787.  Such 
a  measure  may  appear  on  the  statute  book  as  a  mere  act  of 
Congress ;  and  lawyers  may  plead  its  repealability  :  but  to 
those  who  were  cotemporary  with  the  event,  and  saw  the  sacri 
fice  of  feeling,  or  prejudice,  which  wTas  made,  and  the  loss  of 
popularity  incurred,  and  how  great  was  the  danger  of  the 
country  from  which  it  saved  us,  it  becomes  a  national  compact, 
founded  on  considerations  higher  than  money :  and  which  good 
faith  and  the  harmony  and  stability  of  the  Union  deserved  to 
be  cherished  next  after  the  Constitution. 

Of  the  42  who  voted  against  the  compromise,  there  was 
not  one  who  stated  a  constitutional  objection :  all  that  stated 
reasons  for  their  votes,  gave  those  of  expediency — among  others 
that  it  was  an  unequal  division,  which  was  true,  but  the  fault  of 
the  South  ;  for,  while  contending  for  their  share  in  Louisiana, 
they  were  giving  away  nearly  all  below  36°  30'  to  the  King  of 
Spain.*  There  being  no  tie,  the  speaker  (Mr.  Clay)  could  not 

*  Mr.  Justice  Catron  notices  this  inequality  of  the  division,  and  considers  it  a 
great  aggravation  of  an  aggressive  measure  : 

"  The  Missouri  Compromise  line  of  1820  was  very  aggressive :    it  declared  that 


96  EXAMINATION   OF   THE 

vote ;  but  liis  exertions  were  as  zealous  and  active  in  support 
of  it,  as  indispensable  to  the  pacification  of  the  country. 

From  Congress  the  bill  went  to  the  President  for  his  appro 
val  ;  and  there  it  underwent  a  scrutiny  which  brought  out  the 
sense  both  of  the  President  and  his  cabinet  upon  the  precise 
point  which  has  received  the  condemnation  of  the  Supreme 
Court,  and  exactly  contrary  to  the  Court's  decision.  There  was 
a  word  in  the  restrictive  clause  which,  taken  by  itself  and  with 
out  reference  to  its  context,  might  be  construed  as  extending 
the  slavery  prohibition  beyond  the  territorial  condition  of  the 
country  to  which  it  attached — might  be  understood  to  extend 
it  to  the  State  form.  It  was  the  word  "  forever."  Mr.  Mon 
roe  took  the  opinion  of  his  cabinet  upon  the  import  of  this 
word,  dividing  his  inquiry  into  two  questions — whether  the 
word  would  apply  the  restriction  to  Territories  after  they  be 
came  States  ?  and  whether  Congress  had  a  right  to  impose  the 
restriction  upon  a  Territory  ?  Upon  these  two  questions,  the 
opinion  of  the  cabinet  was  unanimous — negatively,  on  the  first ; 
affirmatively,  on  the  other.  These  questions  were  put  formally, 
and  with  a  view  to  official  and  responsible  answers.  A  sepa 
rate,  written  interrogatory  was  addressed  to  each  member  of  his 
cabinet,  and  a  written  answer  required.  These  answers,  so  re 
quired,  were  received  by  the  President,  and  by  him  delivered 
to  his  Secretary  of  State  (Mr.  John  Quincy  Adams)  to  be  filed 
in  the  Department  of  State :  and  it  is  in  full  proof  that  they 
were  so  filed — though  no  longer  to  be  found  there.  The  opinions 
of  the  cabinet  were  unanimous,  upon  both  points  submitted  to 
them  ;  and  that  cabinet  was  a  majority  Southern,  and  the  Presi 
dent  himself  a  Southern  man.  Mr.  Monroe  was  the  President ; 
Mr.  Crawford,  Secretary  of  the  Treasury ;  Mr.  Calhoun,  Secre 
tary  at  War  ;  Mr.  Wirt,  Attorney  General.  And  thus,  all  the 
branches  of  the  legislative  power — the  President,  the  Senate, 


slavery  was  abolished  forever  throughout  a  country  reaching  from  the  Mississippi 
Eiver  to  the  Pacific  Ocean,  stretching  over  thirty-two  degrees  of  longitude,  and  twelve 
and  a  half  degrees  of  latitude  on  its  eastern  side,  sweeping  over  four-fifths,  to  say  no 
more,  of  the  original  province  of  Louisiana." — Mr.  Justice  Oatron. 

The  answer  to  this  is,  that  the  South  made  the  treaty  which  gave  away  so  much 
of  Louisiana,  but  as  it  was  all  got  back,  and  more  too,  before  the  abrogation  of  the 
Missouri  Compromise  Act,  the  inequality  of  the  division  could  no  longer  be  made  a 
subject  of  regret. 


SUPREME  COURT'S  DECISION,  ETC.  97 

and  the  House  of  Representatives — were  of  accord  on  the 
question  of  this  compromise,  both  as  it  regards  constitution 
ality  and  expediency :  and  it  may  be  well  said,  the  three 
branches  were  never  abler  than  at  that  time.  Mr.  Monroe  him 
self  an  experienced  man,  of  sound  judgment,  and  one  of  the 
fathers  of  the  Constitution  :  his  cabinet,  admitted  to  be  one  of 
the  strongest  that  we  have  ever  had  :  the  Senate,  a  solid  body 
of  able  men — Finkney,  of  Maryland,  the  orator  and  the  jurist, 
the  prominent  and  brilliant  figure  :  in  the  House,  a  long  list  of 
eminent  men,  of  whom  Clay  and  Lowndes  shone  most  conspic 
uous.  And  in  that  House,  and  in  the  thick  array  of  its  emi 
nent  men — themselves  eminent — two,  who,  if  Providence  had 
spared  their  lives,  might  have  prevented  the  condemnation  of 
the  compromise  in  the  Supreme  Court :  I  speak  of  Henry 
Baldwin,  of  Pennsylvania,  and  Philip  P.  Barbour,  of  Virginia 
— both  members  of  the  House  at  the  time  of  the  compromise 
— both  supporting  its  constitutionality,  (one  by  his  speech,  the 
other  by  his  vote  :)  both  afterwards  Justices  of  the  Supreme 
Court ;  and  who  could  hardly  be  expected  to  change  their  old 
opinions  thirty-seven  years  after  they  had  acted  so  responsibly 
upon  them.  Upon  the  supposition  of  their  continued  life,  and 
seats  on  the  bench,  and  unchanged  opinions,  the  decision  of 
the  Court  might  have  deen  different. 

It  is  true,  that  in  the  year  1848,  when  the  new  dogma  was 
invented  of  "  No  power  in  Congress  to  act  upon  slavery  in  a 
Territory,"  Mr.  Calhoun  forgot  that  he  had  supported  the  Mis 
souri  Compromise,  and  argued  that  he  could  not  have  done  so ; 
but  it  is  equally  true  that  ten  years  before,  to  wit,  in  1838,  he 
had  not  forgotten  it ;  but  remembered  very  well  that  he  then 
supported  the  Compromise,  and  blamed  Mr.  Randolph  for  op 
posing  it.  It  was  at  that  period  that  Mr.  Calhoun  had  occasion, 
in  the  Senate,  to  speak  of  that  measure,  and  his  course  in  rela 
tion  to  it,  and  did  so  in  these  words  : — 

"  He  was  not  a  member  of  Congress  when  that  compromise  was 
made,  but  it  is  due  to  candor  to  state,  that  his  impressions  were  in  its 
favor ;  but  it  is  equally  due  to  it  to  say  that,  with  his  present  expe 
rience  and  knowledge  of  the  spirit  which  then,  for  the  first  time,  began 
to  disclose  itself,  (abolitionism,)  he  had  entirely  changed  his  opinion. 
He  now  believed  that  it  was  a  dangerous  measure,  and  that  it  has  done 
7 


98  EXAMINATION    OF   THE 

much  to  rouse  into  action  the  present  spirit.  Had  it  then  been  met 
with  uncompromising  opposition,  such  as  a  then  distinguished  and  saga 
cious  member  from  Virginia,  (Mr.  Randolph,)  now  no  more,  opposed  to 
it,  abolition  might  have  been  crushed  forever  in  its  birth.  He  then 
thought  of  Mr.  Randolph  as,  he  doubts  not,  many  think  of  him  now,  who 
have  not  fully  looked  into  the  subject,  that  he  was  too  unyielding — too 
uncompromising — too  impracticable  ;  but  he  had  been  taught  his  error, 
and  took  pleasure  in  acknowledging  it."  * 

Thus,  in  1838 — eighteen  years  after  the  Compromise — Mr. 
Calhoun  well  remembered  his  support  of  it,  and  his  blame  of 
Mr.  Randolph  for  not  supporting  it.  He  also  remembered  his 
change  of  opinion,  and  the  reason  for  the  change,  namely,  that 
it  encouraged  the  abolitionists;  and  up  to  that  time,  (1838,)  he 
had  no  constitutional  objection  to  the  Compromise — nothing 
but  its  tendency  to  encourage  abolitionism.  But  it  needed  not 
this  avowal  of  Mr.  Calhoun  to  invalidate  his  subsequent  for 
getting  so  material  a  point.  It  was  fully  proved — 1.  By  a  letter 
from  Mr.  Monroe  to  General  Jackson  :  2.  By  the  diary  of  Mr. 
Adams :  3.  By  the  Index-book  in  the  Department  of  State,  re 
ferring  to  the  filing  of  the  Cabinet  answers  :  4.  By  traditionary 
history,  which  told  of  the  Cabinet  consultation,  and  that  its 
opinion  was  unanimous. f  It  is  a  public  loss  and  a  mystery,  that 

*  The  occasion  which  drew  these  remarks  from  Mr.  Calhoun  was  the  introduction  of 
his  six  famous  resolutions  of  the  session  l&37-'38,  laying  down  a  code  of  slavery  legis 
lation  for  the  District  of  Columbia  and  the  Territories,  all  bottomed  upon  the  constitu 
tional  right  of  Congress  to  legislate  upon  slavery  in  these  places,  but  deprecating  the 
exercise  of  the  right  by  abolishing  slavery  either  in  the  District  or  in  a  Territory  where 
it  existed  by  law,  not  as  a  breach  of  the  Constitution  but  as  a  "  dangerous  attack " 
upon  slavery  in  the  States,  and  leading  to  the  dissolution  of  the  Union.  The  doo-ma 
of  "  No  power  in  Congress  to  legislate  upon  slavery  in  Territories,"  had  not  then  been 
invented,  and  owes  its  discovery  to  a  period  ten  years  later. 

f  Extract  from  Mr.  Dix's  speech,  above  referred  to : 

"The  Senator  from  Florida  (Mr.  Westcott)  read  to  the  Senate  yesterday  the  fac 
simile  of  an  original  paper  found  among  the  manuscripts  of  Mr.  Monroe,  and  in  his 
handwriting,  by  which  it  appears,  that  when  the  Missouri  Compromise  Act,  as  it  is 
called,  was  passed,  he  took  the  opinions  of  the  members  of  his  Cabinet,  in  writing,  in 
respect  to  the  constitutionality  of  that  act.  The  Senator  from  South  Carolina  (Mr. 
Calhoun)  was  one  of  the  Cabinet ;  and  as  I  took  and  endeavored  to  sustain,  on  a  late 
occasion,  the  position  that  Congress  possesses  the  right  to  prohibit  slavery  in  the  Ter 
ritories  of  the  United  States,  I  am  naturally  desirous  of  fortifving  it  with  all  the 
authority  I  can  command  ;  and  I  shall  be  particularly  gratified,  if  it  shall  be  found 
that  the  distinguished  Senator  alluded  to,  though  now  denying  the  right,  was  then  in 
favor  of  it.  I  will  read  to  the  Senate  all  of  this  paper  which  relates  to  the  subject : 


SUPREME  COURT'S  DECISION,  ETC.  99 

these  Cabinet  answers,  so  carefully  obtained  by  Mr.  Monroe, 
and  intended  to  be  preserved  as  an  archive  of  the  government 
in  the  Department  of  State,  should  have  disappeared  from  that 
office.  Many  searches  were  made  for  them  without  effect — the 
last  under  General  Taylor's  administration,  when  Mr.  John  M. 
Clayton  was  Secretary  of  State ;  but  nothing  could  be  found 
but  the  Index  entry  of  their  filing,  as  stated  by  Mr.  Adams  in 


(From  Mr.  Monroe's  manuscripts.) — A  paper  endorsed  "  Interrogatories,  Missouri — 
March  4, 1820. — To  the  Heads  of  Departments  and  Attorney  General" 
Questions,  (on  opposite  page  :) 

"  Has  Congress  a  right,  under  the  powers  vested  in  it  by  the  Constitution,  to  make 
a  regulation  prohibiting  slavery  in  a  Territory  ? 

"  Is  the  eighth  section  of  the  act  which  passed  both  Houses  on  the  3d  instant,  for 
the  admission  of  Missouri  into  the  Union,  consistent  with  the  Constitution?  " 

With  the  above  is  the  original  draft  of  the  following  letter,  in  President  Monroe's 
handwriting,  on  half  a  sheet  of  paper,  but  not  endorsed  or  addressed  to  an^  one* 
There  are  interlineations,  but  the  text,  as  left  by  the  writer,  is  as  follows : — 

"  DEAR  SIR  :  The  question  which  lately  agitated  Congress  and  the  public  has  been 
settled,  as  you  have  seen,  by  the  passage  of  an  act  for  the  admission  of  Missouri  as  a 
State,  unrestrained,  and  Arkansas  likewise,  when  it  reaches  maturity,  and  the  estab 
lishment  of  the  36°  30'  north  latitude  as  a  line,  north  of  which  slavery  is  prohibited, 
and  permitted  to  the  south.  I  took  the  opinion,  in  writing,  of  the  Administration  as 
to  the  constitutionality  of  restraining  Territories,  [and  the  vote  of  every  member  was 
unanimous  and* ]  which  was  explicit  in  favor  of  it,  and  as  it  was  that  the  8th  section  of 
the  act  was  applicable  to  Territories  only,  and  not  to  States  when  they  should  be  ad 
mitted  into  the  Union.  On  this  latter  point  I  had  at  first  some  doubt ;  but  the 
opinion  of  others,  whose  opinions  were  entitled  to  weight  with  me,  supported  by  the 
sense  in  which  it  was  viewed  by  all  who  voted  on  the  subject  in  Congress,  as  will  ap 
pear  by  the  journals,  satisfied  me  respecting  it." 

This  letter  has  been  supposed  to  have  been  written  to  General  Jackson,  though 
there  is  no  evidence  of  the  fact. 

Mr.  Calhoun:  "If  the  Senator  will  give  way,  it  will  be  perhaps  better  that  I  make  a 
t«tatement  at  once  respecting  this  subject,  as  far  as  my  recollection  will  serve  me. 
During  the  whole  period  of  Mr.  Monroe's  administration,  I  remember  no  occasion  on 
which  the  members  of  his  Administration  gave  written  opinions.  I  have  an  impres 
sion — though  not  a  very  distinct  one — that  on  one  occasion  they  were  required  to  give 
written  opinions  ;  but  for  some  reason,  not  now  recollected,  the  request  was  not  carried 
into  effect.  He  was  decidedly  opposed  to  the  imposition  of  any  restriction  on  the 
admission  of  Missouri  into  the  Union,  and  I  am  strongly  of  the  impression  that  he  was 
opposed  in  feeling  to  what  was  called  the  Missouri  Compromise." 

Mr.  Johnson,  of  Maryland  :  "  Is  this  the  original  letter?" 

Mr.  Dix :  "I understand  it  to  be  a  fac-simle  of  the  original.  As  a  long  period 
(nearly  thirty  years)  has  elapsed  since  the  act  to  admit  Missouri  into  the  Union  was 
passed,  it  is  quite  natural  that  the  Senator  from  South  Carolina  should  have  forgotten 
the  circumstances  attending  the  discussion  of  it  in  the  Cabinet.  Having  heard,  some 
days  ago,  of  the  existence  of  such  a  paper,  and  being  very  desirous  of  ascertaining 


100  EXAMINATION    OF   THE 

his  diary.  This  shows  that  Mr.  Calhoun  saw  nothing  unconsti 
tutional  in  the  Missouri  Compromise  in  1838  :  another  sena 
torial  act  of  his  shows  that  he  saw  nothing  unconstitutional  in 
it  in  1 847,  when  he  voted,  in  an  amendment  to  the  Oregon  Ter 
ritorial  Bill,  to  extend  the  Compromise  line  to  the  Pacific 
Ocean — a  thing  not  to  be  done,  if  the  line  was  unconstitutional, 
and  null  and  void. 

the  facts,  I  wrote  to  Mr.  Charles  F.  Adams,  of  Boston,  a  son  of  the  late  ex-President, 
inquiring  of  him  if  his  father's  diary  contained  any  thing  on  the  subject.  In  reply  to 
my  inquiry,  I  received  an  extract  from  the  diary  of  the  father,  certified  hy  the  son, 
which  I  will  now  read,  and  which  confirms  fully  the  statement  contained  in  Mr.  Mon 
roe's  letter : 

Extracts  from  the  Diary  of  J.  Q.  Adams. 

"  MARCH  3,  1820. — When  I  came  this  day  to  my  office,  I  found  there  a  note,  re 
questing  me  to  call  at  one  o'clock  at  the  President's  house.  It  was  then  one>  and  I 
immediately  went  over.  He  expected  that  the  two  bills,  for  the  admission  of  Maine 
and  to  enable  Missouri  to  make  a  Constitution,  would  have  been  brought  to  him  for 
his  signature  ;  and  he  had  summoned  all  the  members  of  the  Administration  to  ask 
their  opinions  in  writing,  to  be  deposited  in  the  Department  of  State,  upon  two  ques 
tions  :  1.  Whether  Congress  had  a  constitutional  right  to  prohibit  slavery  in  a  Terri 
tory?  and  2,  Whether  the  8th  section  of  the  Missouri  bill  (which  interdicts  slavery 
forever  in  the  Territory  north  of  36  J  latitude)  was  applicable  only  to  the  territorial 
state,  or  would  extend  to  it  after  it  should  become  a  State  ?  As  to  the  first  question, 
it  was  unanimously  agreed  that  Congress  have  the  power  to  prohibit  slavery  in  the 
Territories." 

This  is  the  first  extract ;  and  before  I  proceed  to  the  others,  I  will  state  that,  in 
respect  to  the  second  question,  there  was  a  diversity  of  opinion — Mr.  Adams  contend 
ing  that  a  State  would  be  bound  by  such  a  prohibition  after  its  admission  into  the 
Union,  and  the  other  members  of  the  Cabinet,  that  it  was  only  operative  during  the 
territorial  term.  In  order  to  secure  unanimity  in  the  answers,  the  second  question 
was  modified,  as  will  appear  by  the  remaining  extracts,  which  I  proceed  to  give  : 

"  MARCH  5. — The  President  sent  me  yesterday  the  two  questions  in  writing,  upon 
which  he  desired  to  have  answers  in  writing,  to  be  deposited  in  the  Department  of 
State.  He  wrote  me  that  it  would  be  in  time,  if  he  should  have  the  answers  to-mor 
row.  The  first  question  is  in  general  terms,  as  it  was  stated  at  the  meeting  on  Friday. 
The  second  was  modified  to  an  inquiry,  whether  the  8th  section  of  the  Missouri  bill 
is  consistent  with  the  Constitution.  To  this  I  can  without  hesitation  answer,  by  a 
simple  affirmative,  and  so  after  some  reflection  I  concluded  to  answer  both.  *  * 

"  MARCH  6.  *  *  *  I  took  to  the  President's  my  answer  to  his  two  constitu 
tional  questions,  and  he  desired  me  to  have  them  deposited  in  the  Department,  together 
with  those  of  the  other  members  of  the  Administration.  They  differed  only  as  they 
assigned  their  reason  for  thinking  the  8th  section  of  the  Missouri  bill  consistent  with 
the  Constitution,  because  they  considered  it  as  only  applying  to  the  territorial  term  ; 
and  I  barely  gave  my  opinion,  without  assigning  for  it  any  explanatory  reason.  The 
President  signed  the  Missouri  bill  this  morning." 

These  extracts  are  certified  to  be  "  a  true  copy  from  the  original  by  me, 

"  CHARLES  FRANCIS  ADAMS." 


SUPREME    COURT'S    DECISION,    ETC.  101 

It  was  at  the  conclusion  of  this  eventful  session  (1819-'20), 
and  in  allusion  to  the  momentous  struggle  through  which  the 
House  had  passed,  and  its  happy  termination,  that  Mr.  Clay,  in 
taking  leave  of  the  House,  and  in  returning  his  acknowledg 
ments  for  the  vote  of  thanks  received,  after  expressing  his  personal 
regrets  at  parting  from  so  many  friends,  rose  to  a  higher  senti 
ment,  and  said : — 

"  But  interesting  as  have  been  the  relations  in  which  I  have  stood, 
for  many  years,  to  this  House,  I  have  yet  higher  motives  for  continuing 
to  behold  it  with  the  deepest  solicitude.  I  shall  regard  it  as  the  great 
depository  of  the  most  important  powers  of  our  excellent  Constitution 
— as  the  watchful  and  faithful  sentinel  of  the  freedom  of  the  people — as 
the  fairest  and  truest  image  of  their  deliberate  will  and  wishes ;  and,  as 
that  "branch  of  the  Government  where — if  our  beloved  country  shall, 
unhappily,  be  destined  to  add  another  to  the  long  list  of  melancholy 
examples  of  the  loss  of  public  liberty — we  shall  witness  its  last  strug 
gles  and  its  expiring  throes." 

It  was  in  the  year  1820  that  this  great  compromise  was 
effected.  Twenty-five  years  afterwards  it  received  a  re-enact 
ment,  and  under  circumstances  the  most  impressive.  It  was  in 
the  year  1845,  and  on  the  occasion  of  the  legislative  admission 
of  the  State  of  Texas  into  the  Union.  In  the  previous  year, 
annexation  by  treaty  had  been  refused ;  legislation  was  held  by 
many  to  be  the  indispensable  basis  to  any  incorporation ;  and, 
accordingly,  that  mode  of  annexation  prevailed.  Early  in  the 
session,  1844- '45,  the  la'st  of  Tyler's  administration,  a  joint  reso 
lution  was  brought  into  the  House  of  Representatives  for  the 
admission  of  that  Republic  as  a  State  into  the  Union.  It  was 
in  these  words : — 

"  That  Congress  doth   consent  that  the  territory  properly  included 
within,   and   rightfully  belonging  to  the  Republic  of  Texas,  may  be 
erected  into  a  new  State,  to  be  called  the  State  of  Texas,  with  a  repub 
lican  form  of  government,  to  be  adopted  by  the  people  of  said  Republic, 
by  deputies  in  convention  assembled,  with  the  consent  of  the  existing 
Government,  in  order  that  the  same  may  be  admitted  as  one  of  the 
States  of  this  Union  ;  and  that  the  foregoing  consent  of  Congress  is  given 
upon  the  following  conditions,  and  with  the  following  guarantees  : 
"  Article  I."  (Relates  to  settlement  of  boundaries.) 
"  Article  II."  (Relates  to  public  property  and  vacant  lands.) 


102  EXAMINATION   OF   THE 

"  Article  III.  New  States,  of  convenient  size,  not  exceeding  four 
in  number,  in  addition  to  said  State  of  Texas,  and  having  sufficient 
population,  may  hereafter,  by  the  consent  of  said  State,  be  formed  out 
of  the  territory  thereof,  which  shall  be  entitled  to  admission  under  the 
provisions  of  the  Federal  Constitution.  And  such  States  as  may  be 
formed  out  of  that  portion  of  said  Territory  lying  south  of  thirty-six 
degrees  thirty  minutes,  north  latitude,  commonly  called  the  Missouri 
Compromise  line,  shall  be  admitted  into  the  Union,  with  or  without 
slavery,  as  the  people  of  each  State  asking  may  desire  ;  and,  in  such 
State  or  States  as  shall  be  formed  out  of  said  Territory,  north  of  said 
Missouri  Compromise  line,  slavery,  or  involuntary  servitude  (except  for 
crime),  shall  be  prohibited." 

Here  is  a  complete  re-enactment  of  the  Missouri  Compro 
mise  Act,  and  with  such  particularity  that  the  line  is  both 
astronomically  marked  by  its  latitude — 36  degrees  30  minutes — 
and  also  nominated,  and  twice  nominated,  by  its  popular  de 
scriptive  appellation  of  "the  Missouri  Compromise  Line"  It 
is  a  copy  of  the  Compromise  clause  in  the  act  of  March  6th, 
1820,  copied  to  a  word,  except  one,  and  that  one  word  omitted 
is  as  significant  of  identification  as  any  one  of  those  employed. 
It  is  the  word  "  forever,"  prefixed  to  prohibit.  The  Missouri 
Compromise  of  1820  has  it;  the  Texas  Compromise  of  1845 
omits  it,  and  not  by  accident,  but  for  a  reason,  as  well  under 
stood  by  all  who  were  cotemporary  with  the  event.  It  was  that 
word  which  occasioned  the  cabinet  consultation  under  Mr. 
Monroe — that  word  which  raised  the  question  whether  the  re 
striction  would  follow  the  Territory,  and  stick  to  it  after  it 
became  a  State  ?  and  on  which  all  the  cabinet  of  Mr.  Monroe 
were  required  to  give  written  opinions,  to  be  filed  in  the  Depart 
ment  of  State,  for  perpetual  reference.  Mr.  Calhoun  was  a 
member  of  Mr.  Monroe's  Cabinet  at  the  time  of  the  Missouri 
Compromise,  and  of  Mr.  Tyler's  at  the  time  of  the  Texas  Com 
promise.  As  Secretary  of  State,  he  drew  up  the  joint  resolution 
for  the  admission  of  Texas,  and,  recollecting  the  trouble  which 
the  word  "forever"  had  occasioned  in  one  cabinet  of  which  he 
was  a  member,  he  took  care  to  prevent  a  like  occurrence  in 
another,  of  which  he  wras  head.  This  is  the  reason  of  the  omis 
sion  of  that  word  ;  and  its  omission  goes  still  further  to  identify 
the  latter  Compromise  as  the  copy — copy  in  spirit  as  well  as  in 
words — of  the  former ;  and  Mr.  Calhoun  its  author,  a  fact  other- 


SUPREME   COURTIS    DECISION,    ETO.  103 

wise  well  known  at  the  time.  Among  persons  from  the  South  it 
has  become  the  vogue  to  decry  the  Missouri  Compromise,  and 
to  prejudice  it  with  the  imputation  of  being  a  Northern  meas 
ure,  while  its  history  shows  the  contrary ;  and  being  an  event 
long  since  passed,  and  its  history  inaccessible  to  the  community, 
many  are  persuaded  to  believe  in  the  fable.  But  not  so  with 
the  Texas  Compromise ;  it  is  recent,  the  actors  are  still  on  the 
stage,  and  the  witnesses  alive ;  and  there  is  no  room  for  mis 
take,  or  deception,  or  misrepresentation,  or  misconception, 
about  it.  The  event  is  of  our  own  day,  and  the  performers 
(most  of  them)  still  in  being.  It  was  done  under  a  Southern 
administration — an  administration  not  merely  of  the  South,  but 
ultra  South ;  of  the  extreme  South  Carolina  States'  Rights 
school.  Mr.  John  Tyler  was  President ;  Mr.  Calhoun  Secretary 
of  State,  with  the  ascendant  in  the  cabinet  which  it  is  the  pre 
rogative  of  genius  to  take  over  inferior  minds  ;  and  that  cabinet 
was  a  unit  for  the  measure.  One  hundred  and  twenty  mem 
bers  of  the  House — a  full  majority,  and  nearly  every  Southern 
member — voted  for  it.*  The  negatives  (97  in  number)  were 


*  Their  names  are :  Messrs.  Archibald  H.  Arlington,  John  B.  Ashc,  Archibald 
Atkinson,  Thomas  H.  Bailey,  James  E.  Belser,  Benjamin  A.  Bidlack,  Edward  J.  Black, 
James  Black,  James  A.  Black,  Julius  W.  Rockwell,  Gustavus  M.  Bower,  James  B. 
Bawlin,  Linn  Boyd,  Richard  Broadhead,  Aaron  V.  Brown,  Milton  Brown,  William  J. 
Brown,  Edmund  Burke,  Armistead  Burt,  George  Alfred  Caldwell,  John  Campbell, 
Stephen  Carey,  Reuben  Chapman,  Augustus  A.  Chapman,  Absalom  H.  Chappell, 
Duncan  L.  Clerich,  James  G.  Clinton,  Howell  Cobb,  Walter  Coles,  Edward  Cross, 
Alvan  Cullom,  John  R.  I.  Daniel,  John  W.  Davis,  John  B.  Dawson,  Ezra  Dean,  James 
Dellet,  Stephen  A.  Douglass,  George  C.  Dromgoole,  Alexander  Duncan,  Chesselden 
Ellis,  Isaac  G.  Farlee,  Orlando  B.  Ficklin,  Henry  D.  Foster,  Richard  French,  George 
Fuller,  William  H.  Hammett,  Hugh  A.  Haralson,  Sam.  Hayes,  Thomas  J.  Henley, 
Isaac  E.  Holmes,  Joseph  P.  Hoge,  George  W.  Hopkins,  George  S.  Houston,  Edmund 
W.  Hubard,  William  S.  Hubbell,  James  M.  Hughes.  Charles  J.  Ingersoll,  John  Jame 
son,  Cave  Johnson,  Andrew  Johnson,  George  W.  Jones,  Andrew  Kennedy,  Littleton 
Kirkpatrick,  Alcee  Labranche,  Moses  G.  Leonard,  William  Lucas,  John  H.  Lumpkin, 
Lucius  Lyon,  William  C.  McCauslen,  William  B.  Maclay,  John  A.  McClernand,  Felix 
Grundy  McConnel,  Joseph  J.  McDowell,  James  J.  McKay,  James  Matthews,  Joseph 
Morris,  Isaac  E.  Morse,  Henry  C.  Murphy,  Willoughby  Newton,  Moses  Norris,  jr., 
Robert  Dale  Owen,  William  Parmenter,  William  W.  Payne,  John  Pettit,  Joseph  H. 
Peyton,  Emery  D.  Potter,  Zadock  Pratt,  David  S.  Reid,  James  H.  Relfe,  R.  Barn- 
well  Rhett,  John  Ritter,  Robert  W.  Roberts,  Jeremiah  Russell,  Romulus  M.  Saunders, 
Win.  T.  Senter,  Thomas  H.  Seymour,  Samuel  Simons,  Richard  F.  Simpson,  Johu 
Slidell,  John  T.  Smith,  Thomas  Smith,  Robert  Smith,  Lewis  Steemnrd,  Alexander  H. 
Stephens,  John  Stewart,  James  W.  Stone,  Selah  B.  Strong,  Wm.  H.  Styles,  George 


104:  EXAMINATION   OF   THE 

chiefly  from  the  free  States.  In  the  Senate,  it  was  carried  by 
Southern  votes,  and  so  close,  that  no  two  could  have  been 
spared.  This  re-enactment  of  the  Missouri  Compromise  stands 
forth,  then,  as  an  unmistakable  Southern  measure — Southern  in 
its  conception,  Southern  in  its  support,  Southern  in  its  consum 
mation  ;  and  the  speakers  for  it  either  all  Southern  men,  or  that 
part  from  the  free  States  who  most  cherished  the  Southern 
interest.  Of  these,  Mr.  Buchanan,  one  of  the  most  eminent 
among  the  Northern  friends  of  the  South,  and  one  of  the  most 
zealous  for  the  re-enactment  of  the  Missouri  Compromise,  thus 
spoke :— 

"  He  was  pleased  with  it  (the  renewed  Compromise)  again,  because 
it  settled  the  question  of  slavery.  These  resolutions  went  to  re-establish 
the  Missouri  Compromise,  by  fixing  a  line  within  which  slavery  was  to 
be  in  future  confined.  That  controversy  had  nearly  shaken  the  Union 
to  its  centre  in  an  earlier  and  better  period  of  our  history ;  but  this 
Compromise,  should  it  be  now  re-established,  would  prevent  the  recur 
rence  of  similar  dangers  hereafter.  Should  this  question  be  now  left 
open  for  one  or  two  years,  the  country  could  be  involved  in  nothing  but 
one  perpetual  struggle.  We  should  witness  a  feverish  excitement  in 
the  public  mind  ;  parties  would  divide  on  the  dangerous  and  excitino* 
question  of  abolition ;  and  the  irritation  might  reach  such  an  extreme 
as  to  endanger  the  existence  of  the  Union  itself;  but  close  it  now,  and 
it  will  be  closed  forever. 

"  Mr.  B.  said  he  anticipated  no  time  when  the  country  would  ever 
desire  to  stretch  its  limits  beyond  the  Rio  del  Norte ;  and  such  being 
the  case,  ought  any  friend  of  the  Union  to  desire  to  sec  this  question 
left  open  any  longer  ?  Was  it  desirable  again  to  have  the  Missouri 
question  brought  home  to  the  people,  to  goad  them  to  fury  ?  That  ques- 

Sykes,  William  Taylor,  Jacob  Thompson,  John  W.  Tibbatts,  Tilghman  H.  Tucker, 
John  B.  Weller,  John  Wentworth,  Joseph  A.  Woodward,  Joseph  A.  Wright,  Wm.  L. 
Yancy,  Jacob  S.  Yost. 

The  Senators  voting  for  it  were  : 

Messrs.  Allen,  of  Ohio  ;  Ashley,  of  Arkansas  ;  Atchison,  of  Missouri ;  Atherton, 
of  New  Hampshire  ;  Bagley,  of  Alabama  ;  Benton,  of  Missouri ;  Breese,  of  Illinois ; 
Buchanan,  of  Pennsylvania  ;  Colquet,  of  Georgia  ;  Dickinson,  of  New  York ;  Dix, 
of  New  York ;  Fairfield,  of  Maine ;  Hannegan,  of  Indiana ;  Hay  wood,  of  North  Car 
olina  ;  Henderson,  of  Mississippi ;  Heger,  of  South  Carolina ;  Johnson,  of  Georgia ; 
Lewis,  of  North  Carolina  ;  McDuffie,  of  South  Carolina  ;  Merrick,  of  Maryland ; 
Miles,  of  Connecticut ;  Semple,  of  Illinois ;  Sevier,  of  Arkansas ;  Sturgeon,  of 
Pennsylvania ;  Tappan,  of  Ohio ;  Walker,  of  Mississippi ;  Woodbury,  of  New 
Hampshire. 


SUPREME   COURT'S   DECISION,    ETC.  105 

tion  between  the  two  great  interests  of  our  country  had  been  well  dis 
cussed  and  well  decided ;  and  from  that  moment  Mr.  B.  had  set  down 
his  foot  on  the  solid  ground  then  established,  and  there  he  would  let  the 
question  stand  forever.  Who  could  complain  of  the  terms  of  that 
Compromise  ?  It  was  then  settled  that  north  of  36  degrees  30  minutes, 
slavery  should  be  forever  prohibited.  The  same  line  was  fixed  upon  in 
the  resolutions  recently  received  from  the  House  of  Representatives,  now 
before  us.  The  bill  from  the  House  for  the  establishment  of  a  territo 
rial  government  in  Oregon,  excluded  slavery  altogether  from  that  vast 
country.  How  vain  were  the  fears  entertained  in  some  quarters  of  the 
country  that  the  slaveholding  States  would  ever  be  able  to  control  the 
Union  !  While,  on  the  other  hand,  the  fears  entertained  in  the  South 
and  West,  as  to  the  ultimate  success  of  the  Abolitionists,  were  not  less 
unfounded  and  vain..  South  of  the  Compromise  line  of  36  degrees  30 
minutes,  the  States  within  the  limits  of  Texas  applying  to  come  into 
the  Union,  were  left  to  decide  for  themselves  whether  they  would  permit 
slavery  within  their  limits  or  not.  And  under  this  free  permission,  he 
believed  with  Mr.  Clay  (in  his  letter  on  the  subject  of  annexation),  that 
if  Texas  should  be  divided  into  five  States,  two  only  of  them  would  be 
slaveholding,  and  three  free  States." 

Thus  spoke  Mr.  Buchanan,  and,  in  so  speaking,  was  the 
accepted  mouthpiece,  and  fair  reflector  of  the  sentiments  of  the 
large  party  with  whom  he  acted.  And  here  it  is  proper  to 
explain  the  reason  why  it  became  necessary  to  re-enact  the  Mis 
souri  Compromise  line;  and  the  explanation  is  found  in  the 
history  of  the  times.  Thus  :  six  months  after  the  establishment 
of  the  Missouri  Compromise  line,  the  treaty  with  Spain  was 
ratified,  by  which  a  new  boundary  with  that  power  was  estab 
lished,  by  which  Texas  was  brought  up  to  the  river  Arkansas 
in  about  north  latitude  37  ;  and  followed  that  river,  north-west, 
to  its  source,  above  latitude  39 — according  to  the  treaty,  as  far 
as  north  latitude  42.  Texas  admitted  slavery,  and  her  laws 
and  constitution  spread  the  institution  all  over  her  territory ; 
and  as  the  parallel  of  36°  30'— about  450  miles  of  it— fell  within 
her  territory,  the  Missouri  Compromise  line  was,  to  that  extent, 
effaced.  It  was  to  restore  it  in  that  effaced  part,  being  in  fact 
much  the  greatest  part  of  it,  that  the  line  was  re-established  in 
the  compact  for  admitting  Texas  into  the  Union.  This  is  a  clear 
case  of  Congress  legislating  upon  slavery  in  a  Territory  ;  and  the 
distinction  taken  that  it  was  done  by  compact,  and  not  law,  is 


106  EXAMINATION    OF   THE 

unfounded  and  absurd".  The  compact  itself  is  only  a  law  of 
Congress,  agreed  to  by  Texas ;  and  the  law  passed  before  Texas 
acted :  and  the  Constitution  is  paramount  over  treaties  and 
compacts  as  over  laws.  Neither  statute,  treaty,  nor  compact 
can  alter  the  Constitution,  nor  do  any  thing  contrary  to  it :  and 
the  only  difference  between  the  Texas  and  Missouri  Compro 
mises  is,  that  while  both  rest  upon  acts  of  Congress,  one  has 
been  made  the  foundation  of  a  proceeding  with  a  foreign  power. 
Quere  :  Can  the  Supreme  Court  invalidate  this  re-enacted  line  ? 
This  brings  down  the  sanctions  of  the  Missouri  Compromise 
to  the  year  1845 — being  twenty-five  years  after  its  first  enact 
ment — ample  time  it  might  be  supposed  for  its  constitutionality 
to  be  questioned,  if  there  was  ground  for  it ;  and  ample  time  for 
it  to  have  been  found  out,  if  such  was  the  fact,  that  its  enact 
ment  worked  an  inequality  of  the  States,  and  involved  degrada 
tion  and  injury  to  a  part  of  them.  Xo  such  things  were  then 
discovered,  and  we  will  now  go  forward  four  years  further,  and 
under  another  administration,  and  that  a  Southern  one,  and 
show  that  same  measure  still  receiving  the  sanction  of  those 
who  have  since  commenced  its  repudiation.  This  further  sanc 
tion  was  also  on  a  responsible  legislative  measure — the  estab 
lishment  of  the  Oregon  territorial  government,  August,  1848. 
The  bill  had  come  up  from  the  House  without  any  thing  in  it 
on  the  subject  of  slavery  :  Mr.  Hale  moved  to  extend  the  anti- 
slavery  ordinance  of  '87  to  the  Territory,  and  it  was  done. 
Mr.  Douglass  moved  to  extend  the  Missouri  Compromise  line  to 
the  Pacific  Ocean,  and  that  motion  received  the  following  vote  : 
Yeas — Messrs.  Atchison,  of  Mri. ;  Badger,  of  ]Sr.  C.  ;  Bell,  of 
Tenn.  ;  Benton,  of  Mri. ;  Berrian,  of  Geo.  ;  Borland,  of  Ark. ; 
Bright,  of  Ind. ;  Butler,  of  S.  C. ;  Calhoun,  of  S.  C. ;  Cameron, 
of  Pcnn.  ;  Davis,  of  Mppi. ;  Dickinson,  of  !N".  Y. ;  Downs,  of 
Lou. ;  Fitzgerald,  of  Mich.  ;  Foote,  of  Mppi.  ;  Hannegan,  of 
Ind. ;  Houston,  of  Tex. ;  Hunter,  of  Vir.  ;  Johnson,  of  Md. ; 
Henry  Johnson,  of  Lou. ;  Johnson,  of  Geo. ;  King,  of  Ala. ; 
Lewis,  of  Ala. ;  Mangum,  of  N".  C. ;  Mason,  of  Vir. ;  Metcalf,  of 
Ken.  ;  Pearce,  of  Md.  ;  Sebastian,  of  Ark.  ;  Spruance,  of  Del.  ; 
Sturgeon,  of  Penn.  ;  Turney,  of  Tenn.  ;  Underwood,  of  Ken. 
The  amendment  itself,  thus  offered  by  Mr.  Douglass,  was  not 
merely  an  extension  of  the  line  in  a  particular  case,  but  a  re- 


SUPREME   COUET'S    DECISION,    ETC.  107 

vival,  and  a  general  and  perpetual  enforcement  of  the  Missouri 
Compromise  line  on  all  Territories.     It  was  in  these  words  :— 

"  That  the  line  of  06  degrees,  30  minutes  of  north  latitude,  known 
as  the  Missouri  Compromise  line,  as  denned  by  the  eighth  section  of  an 
Act  entitled,  '  An  Act  to  authorize  the  people  of  the  Missouri 
Territory  to  form  a  constitution  and  State  government,  and  for  the 
admission  of  such  State  into  the  Union  on  an  equal  footing  with  the 
original  States,  and  to  prohibit  slavery  in  certain  Territories,  ap 
proved  March  Qth,  1820,'  be,  and  the  same  is  hereby  declared  to 
extend  to  the  Pacific  Ocean;  and  the  eighth  section,  together  with  the 
compromise  therein  effected,  is  hereby  revived,  and  declared  to  be  in 
full  force  and  binding  for  the  future  organization  of  the  Territories  of 
the  United  States,  in  the  same  sense,  and  witk  the  same  understanding, 
with  which  it  was  originally  adopted." 

It  was  on  Thursday,  August  the  10th,  1848  (for  in  cases  of 
sudden  political  conversions  it  is  profitable  to  look  to  dates, 
even  to  a  day) — it  was  on  this  first  decade  of  the  second  month, 
of  the  second  half,  of  the  year  1848,  that  this  vote  passed  in  the 
American  Senate  ;  and  it  must  be  received  as  the  highest  sanc 
tion  of  the  compromise  on  the  part  of  those  voting  for  it,  which 
could  be  devised.  It  is  not  merely  an  extension  of  the  compro 
mise  line  :  it  is  also  its  perpetuation,  and  application  of  it  to  all 
the  United  States  Territories — to  enter  into  their  organization, 
and  to  be  in  full  force,  and  binding  upon  them.  Such  a  vote 
went  beyond  the  admission  of  constitutionality  :  it  went  to  the 
merits  and  expediency  of  the  measure — approved  it  under  every 
aspect.  It  even  went  beyond  the  words  of  the  Missouri  act — 
entered  its  spirit — seized  its  sense  and  intent,  as  understood  at 
the  time  of  its  adoption ; — and  solemnly  sanctioned  and  pre 
served  the  whole.  Certainly,  with  respect  to  those  so  voting, 
and  they  were  men  to  vote  responsibly,  nothing  more  could  be 
asked.  Constitutionality,  and  expediency,  were  equally  vouched 
for.  The  33  affirmative  votes  were  a  majority  of  the  Senate : 
the  amendment  was  incorporated  with  the  bill,  and  went  to  the 
House  for  its  concurrence,  where  it  received  the  vote  of  the 
Southern  members,  and  some  part  of  their  friends  in  the  free 
States — 82  in  all ;  *  not  enough  to  carry  it :  so  it  was  disagreed 

*  The  members  of  the  House  voting  in  favor  of  concurring  with  the  Senate,  i.  e. 
Mr.  Douglass's  amendment,  were  : — Messrs.  Adams,   Atkinson,    Barringer,   Barrow, 


108  EXAMINATION   OF   THE 

to,  and  returned  to  the  Senate.  It  was  in  the  night,  and  the 
last  night  of  the  session  ;  and  Mr.  Benton,  fearing  the  loss  of  the 
Oregon  bill  in  the  disagreement  between  the  two  Houses,  moved 
that  the  Senate  recede  from  its  amendment.  Then  came  another 
vote  on  the  Missouri  Compromise  clause  ;  and  twenty -live  Sen 
ators — being  the  array  that  always  stood  most  firmly  for  the 
South  *• — voted  against  receding ;  that  is  to  say,  in  favor  of  ex 
tending,  enforcing,  preserving,  and  perpetuating  the  Missouri 
Compromise  line,  and  making  it  applicable  to  all  Territories.  It 
was  called  the  Missouri  Compromise  line,  and,  astronomically, 
the  extension  would  have  been  the  same  as  the  original  part, 
but  politically  far  different  and  stronger;  for  the  Louisiana  part 
went  through  territory,  all  slave,  and  made  one  side  of  the  line 
free ;  the  California  part  would  go  through  territory,  all  free, 
and  make  one  part  slave.  This  was  an  effect  which  many  of 
the  free  State  members  of  the  House,  usually  voting  with  the 
South  on  slavery  questions,  could  not  stand :  and  hence  the  loss 
of  the  amendment  there. 

This  vote  in  the  Senate  was  accompanied  by  declarations  of 
their  opinions  by  several  Senators — among  others,  by  Mr.  John 
son,  of  Maryland,  who  said  :  "  He  lelieved  in  the  existence  of  the 
power  in  Congress  to  pass  a  law  to  prohibit  slavery,  and  if  such 
a  law  were  presented  to  the  Supreme  Court  for  a  decision  on  its 
constitutionality ',  it  looulcl  le  in  favor  of  the  law.  As  a  judicial 
question,  the  decision  would  le  against  protection  to  the  South." 
On  a  previous  bill  providing  territorial  governments  for  Oregon, 
California,  and  New  Mexico,  he  had  said  that  he  should  him- 

Bayly,  Beale,  Bedinger,  Birdsall,  Bocock,  Botts,  Bowdon,  Bowlin,  Boyd,  Boydon, 
Brodhead,  Charles  Brown,  Albert  G.  Brown,  Buckner,  Burt,  Cabell,  Chapman,  Chase, 
Reverly  L.  Clarke,  Clingman,  Howell  Cobb,  Williamson  R.  W.  Cobb,  Cocke,  Crozier, 
Daniel,  Donnell,  Garnett  Duncan,  Alexander  Evans,  Featlierston,  Flournoy,  French, 
Fulton,  Gayle,  Goggin,  Greene,  Willard  P.  Hall,  Haralson,  Harmanson,  Harris,  Haskell, 
Hill,  Billiard,  Isaac  E.  Holmes,  George  S.  Houston,  Charles  J.  Ingersoll,  Iverson, 
Andrew  Johnson,  Robert  W.  Johnson,  George  W.  Jones,  John  W.  Jones,  Kaufman, 
Thomas  Butler  King,  Ligon,  Lumpkin,  McDowell,  McKay,  M'Lane,  Meade,  Morehead, 
Outlaw,  Pendleton,  Phelps,  Pillsbury,  Preston,  Rhett,  Roman,  Shepperd,  Stanley, 
Stephens,  Thomas,  Jacob  Thompson,  John  B.  Thompson,  Robert  A.  Thompson, 
Tompkins,  Toombs,  Venable,  Wallace,  and  Woodward — 82. 

*  Their  names  :— Messrs.  Atchison,  Badger,  Bell,  Berrien,  Borland,  Butler,  Cal- 
houn,  Davis  of  Mississippi,  Downs,  Foote,  Hunter,  Johnson  of  Maryland,  Johnson  of 
Louisiana,  Johnson  of  Georgia,  Lewis,  Mangum,  Mason,  Metcalfe,  Pearce,  Rusk, 
Sebastian,  Turney,  Underwood,  Westcott,  and  Yulee— 25. 


ETC.  109 

self  have  submitted  an  amendment  adopting  the  line  of  the  Mis 
souri  Compromise,  had  he  not  been  anticipated  in  his  motion 
by  a  Senator  from  Indiana  (Mr.  Bright). 

The  passage  of  the  Oregon  bill  gave  occasion  to  President 
Polk  to  express  his  opinion  of  the  Missouri  and  Texas  com 
promises — their  happy  effects  in  tranquillizing  the  Union,  and 
the  necessity  of  preserving  them  inviolate.  He  said  : — 

"  In  December,  1819,  application  was  made  to  Congress  by  the 
people  of  the  Missouri  Territory,  for  admission  into  the  Union  as  a 
State.  The  discussion  upon  the  subject  in  Congress  involved  the  ques 
tion  of  slavery,  and  was  prosecuted  with  such  violence  as  to  produce 
excitements  alarming  to  every  patriot  in  the  Union.  But  the  good 
genius  of  conciliation  which  presided  at  the  birth  of  our  institutions 
finally  prevailed,  and  the  Missouri  Compromise  was  adopted.  This 
compromise  had  the  effect  of  calming  the  troubled  waves,  and  restoring 
peace  and  good  will  throughout  the  States  of  the  Union.  I  do  not 
doubt  that  a  similar  adjustment  of  the  questions  which  now  agitate  the 
public  mind  would  produce  the  same  happy  results.  If  the  legislation 
of  Congress  on  the  subject  of  the  other  Territories  shall  not  be  adopted 
in  a  spirit  of  conciliation  and  compromise,  it  is  impossible  that  the  coun 
try  can  be  satisfied,  or  that  the  most  disastrous  consequences  shall  fail  to 
ensue.  When  Texas  was  admitted  into  our  Union,  the  same  spirit  of 
compromise  which  guided  our  predecessors  in  the  admission  of  Missouri, 
a  quarter  of  a  century  before,  prevailed  without  any  serious  opposition. 
The  Joint  Resolution  for  annexing  Texas  to  the  United  States,  approved 
March  1st,  1845,  provides  that,  '  such  States  as  may  be  formed  out  of 
that  portion  of  the  Territory  lying  south  of  36  degrees  30  minutes  north 
latitude,  commonly  called  the  Missouri  Compromise  line,  shall  be  ad 
mitted  into  the  Union  with,  or  without  slavery,  as  the  people  of  such 
State  asking  admission  may  decide.  And  to  such  State  or  States  as 
shall  be  formed  out  of  said  Territory  north  of  the  Missouri  Compromise 
line,  slavery  or  involuntary  servitude  (except  for  crime)  shall  be  pro 
hibited.  The  Territory  of  Oregon  lies  far  north  of  36  degrees  30  min 
utes,  the  Missouri  and  Texas  Compromise  lines.  Its  southern  boundary 
is  the  parallel  of  42,  leaving  the  intermediate  distance  to  be  330  geo 
graphical  miles.  And  it  is  because  the  provisions  of  this  bill  are  not 
inconsistent  with  the  terms  of  the  Missouri  Compromise,  if  extended 
from  the  Rio  Grande  to  the  Pacific  Ocean,  that  I  have  not  felt  at  liberty 
to  withhold  my  sanction.  Had  it  embraced  Territories  south  of  that 
compromise,  the  question  presented  for  my  consideration  would  have 
been  of  a  far  different  character,  and  my  action  upon  it  would  have  cor- 


110  EXAMINATION   OF   THE 

responded  with  my  convictions.  Ought  we  now  to  disturb  the  Missouri 
and  Texas  compromises  ?  Ought  we,  at  this  late  day,  in  attempting  to 
annul  what  has  been  so  long  established,  and  acquiesced  in,  to  excite 
sectional  divisions  and  jealousies — to  alienate  the  people  from  different 
portions  of  the  Union  from  each  other — and  to  endanger  the  existence 
of  the  Union  itself  ?  " 

These  were  the  earnest  and  patriotic  appeals  of  Mr.  Polk,  in 
favor  of  the  two  compromises ;  one  of  which  restored  peace  to 
a  distracted  country,  the  other  brought  Texas  into  the  Union. 
He  prayed  for  the  perpetuity  of  these  healing  measures,  not 
only  in  his  message  on  the  Oregon  bill,  but  also  in  his  last  an 
nual  message — the  last  of  his  most  formal  communications  to 
Congress :  in  that  last  message  he  repeated  his  sentiments, 
saying  :— 

"  Upon  a  great  emergency,  and  under  menacing  dangers  to  the  Union, 
the  Missouri  Compromise  line  with  respect  to  slavery  was  adopted.  The 
same  line  was  extended  further  west  on  the  acquisition  of  Texas.  After 
an  acquiescence  of  near  thirty  years  in  the  principles  of  compromise 
recognized  and  established  by  these  acts,  and  to  avoid  the  danger  to  the 
Union  which  might  follow,  if  it  were  now  disregarded,  I  have  heretofore 
expressed  the  opinion  that  that  line  of  compromise  should  be  extended 
on  the  parallel  of  36°  30'  from  the  western  boundary  of  Texas,  where  it 
now  terminates,  to  the  Pacific  Ocean." 

Such  were  the  reiterated  sentiments  of  President  Polk,  up 
to  the  end  of  his  presidential  service,  which,  unfortunately,  was 
only  precursor  to  the  termination  of  his  life.  Far  from  seeing 
any  thing  in  the  Missouri  Compromise  violative  of  the  Consti 
tution,  or  insulting  and  injurious  to  the  slave  States,  or  as  mak 
ing  an  inequality  in  the  States,  he  saw  in  it  only  beneficent  and 
felicitous  effects — pacification  of  the  country,  extinction  of  a 
rising  conflagration,  and  preservation  of  the  Union.  He  was  a 
Southern  man  and  a  slaveholder,  and  certainly  could  not  be 
blind  to  dangers  to  Southern  States  and  slaveholders  ;  his  cabi 
net,  also,  were  men  of  the  South,  or  Northern  men  deep  in  South 
ern  sympathies,  principles,  and  feelings  :  James  Buchanan, 
Secretary  of  State  ;  Kobert  J.  Walker,  of  the  Treasury ;  Wil 
liam  L.  Marcy,  of  New  York,  War  Department ;  John  Y.  Mason, 
Navy ;  Cave  Johnson,  Postmaster-General ;  Isaac  Toucey,  At 
torney-General. 


SUPREME   COURT'S    DECISION,    ETC.  Ill 

The  year  1850  presents  the  last  instance  to  be  given  of 
Southern  sanction  of  the  Missouri  Compromise  line — a  date  suf 
ficiently  recent  to  avoid  the  statute  of  limitations,  if  any  date 
can  be  late  enough  to  prevent  the  running  of  that  statute  against 
mutable  politicians.  Mr.  Calhoun  was  then  dead :  Mr.  Davis, 
of  Mississippi,  seemed  to  succeed  to  the  head  of  his  party  ;  and 
in  the  discussion  of  Mr.  Clay's  compromise  scheme,  reported 
from  the  Committee  of  Thirteen,  demanded  the  extension  of  the 
Missouri  line  to  the  Pacific  Ocean,  and  the  recognition  of  slavey 
on  the  south  side  of  that  line  ;  and  declared  these  terms  to  be 
the  least  that  he  would  take.  Thus  :— 

"  I  here  assert  that  never  will  I  take  less  than  the  Missouri  Com 
promise  line  extended  to  the  Pacific  Ocean,  with  the  specific  recognition 
of  the  right  to  hold  slaves  in  the  Territory  below  that  line ;  and  that, 
before  such  Territories  are  admitted  into  the  Union  as  States,  slaves  may 
be  taken  there  from  any  of  the  United  States,  at  the  option  of  their 
owners." 

Mr.  Clay  replied  to  the  demand  of  Mr.  Davis,  and  said: — 

"  I  am  extremely  sorry  to  hear  the  Senator  from  Mississippi  say 
that  he  requires,  first,  the  extension  of  the  Missouri  Compromise  line  to 
the  Pacific,  and,  also  thatvhe  is  not  satisfied  with  that,  but  requires,  if  I 
understood  him  correctly,  a  positive  provision  for  the  admission  of 
slavery  south  of  that  line.  And  now,  sir,  coming  from  a  slave  State  as 
I  do,  I  owe  it  to  myself,  I  owe  it  to  truth,  I  owe  it  to  the  subject,  to  say 
that  no  earthly  power  could  induce  me  to  vote  for  a  specific  measure  for 
the  introduction  of  slavery  where  it  had  not  before  existed,  either  south 
or  north  of  that  line.  Coming  as  I  do  from  a  slave  State,  it  is  my 
solemn,  deliberate,  and  well-matured  determination,  that  no  power — no 
earthly  power — shall  compel  me  to  vote  for  the  positive  introduction  of 
slavery  either  south  or  north  of  that  line.  Sir,  while  you  reproach,  and 
justly  too,  our  British  ancestors  for  the  introduction  of  this  institution 
upon  the  continent  of  North  America,  I  am,  for  one,  unwilling  that  the 
posterity  of  the  present  inhabitants  of  California  and  of  New  Mexico, 
shall  reproach  us  for  doing  just  what  we  reproach  Great  Britain  for 
doing  to  us.  If  the  citizens  of  these  Territories  choose  to  establish 
slavery,  and  if  they  come  here  with  Constitutions  establishing  slavery,  I 
am  for  admitting  them  with  such  provisions  in  their  Constitutions ;  but 
then  it  will  be  their  own  work,  and  not  ours ;  and  their  posterity  will  have 
to  reproach  them,  and  not  us,  for  forming  Constitutions  allowing  the  in 
stitution  of  slavery  to  exist  among  them.  These  are  my  views,  sir,  and 


112  EXAMINATION    OF   THE 

I  choose  to  express  them ;  and  I  care  not  how  extensively,  or  universally 
they  are  known." 

Mr.  Turney,  of  Tennessee,  moved  the  amendment  to  cover 
the  demand  of  Mr.  Davis  :  it  was  to  extend  the  Missouri  Com 
promise  line  to  the  Pacific,  limiting  the  State  of  California  to 
the  north  side  of  that  line,  and  establishing  slavery  to  the  south 
of  it.  His  amendment  consisted  of  two  sections,  and  constituted 
a  ne  w  bill,  and  was  in  these  words  : — 

"  When  it  shall  be  made  to  appear  to  the  President  of  the  United 
States,  by  satisfactory  evidence,  that  the  people  inhabiting  the  Territory 
of  California,  (or  so  much  of  said  Territory  as  is  comprehended  in  the 
limits  proposed  by  this  bill  as  the  boundaries  of  the  State  of  California,) 
assembled  in  convention,  have  agreed  to  a  line  not  further  south  than 
the  parallel  of  36  degrees  30  minutes  north  latitude,  as  the  southern 
boundary  of  said  State,  and  limited  the  representation  of  said  State  to 
one  State  until  after  the  next  census  of  the  inhabitants  of  the  United 
States,  the  said  State  of  California  may  be  admitted  into  the  Union  upon 
the  proclamation  of  the  President,  upon  an  equal  footing  with  the  origi 
nal  States. 

"  Sec,  2.  And  be  it  further  enacted,  That  the  line  of  36  degrees  30 
minutes  north  latitude,  known  as  the  Missouri  Compromise  line,  as  de 
fined  in  the  eighth  section  of  an  act  entitled,  l  an  act  to  authorize  the 
people  of  the  Missouri  Territory  to  form  a  Constitution  and  State  Gov 
ernment,  and  for  the  admission  of  such  State  into  the  Union  on  an  equal 
footing  ivith  the  original  States,  to  prohibit  slavery  in  certain  Terri 
tories^  approved  March  6th,  1820,  be,  and  the  same  is  declared  to 
extend  to  the  Pacific  Ocean  :  and  the  said  eighth  section,  together  with 
the  compromise  therein  effected,  is  hereby  revived,  and  declared  to  be 
in  full  force  and  binding  for  the  future  organization  of  the  Territories  of 
the  United  States  in  the  same  manner  and  with  the  same  understanding 
with  which  it  was  originally  adopted.'' 

For  this  amendment  twenty -four  Senators  voted  ;  to  wit : — 
Messrs.  Atchison,  Badger,  Barnewell,  Bell,  Berrien,  Butler, 
Clemens,  Davis,  of  Mississippi;  Dawson,  of  Georgia;  Downs, 
of  Louisiana;  Foote,  Houston,  Hunter,  (R.  M.  T.),  King,  of 
Alabama ;  Mangum,  Mason,  Morton,  of  Florida ;  Pearce,  of 
Maryland  ;  Pratt,  of  Maryland  ;  Rusk,  of  Texas  ;  Sebastian,  of 
Arkansas  ;  Soule,  of  Louisiana ;  Turney,  of  Tennessee  ;  and 
Yuleo,  of  Florida. 

It  was  Tuesday,  the  6th  day  of  August,  Anno  Domini  1850, 


SUPREME   COURT'S   DECISION,    ETC.  113 

that  this  vote  was  given ;  so  that  up  to  that  day,  this  array  of 
Senators,  reputed  to  represent  Southern  interests,  feelings,  and 
principles,  saw  nothing  unconstitutional,  unjust,  or  derogatory  to 
other  States  in  it ;  and  adopted  it  in  spirit  and  understanding, 
and  with  the  same  intent  of  perpetual  observance  with  which 
it  was  originally  adopted.  That  understanding  was,  that  Con 
gress  had  power  to  legislate  upon  slavery  in  Territories,  and  to 
abolish  it  therein  when  it  saw  fit,  and  that  such  legislation 
worked  no  inequality  in  the  States ;  and,  in  the  particular  case 
of  the  Missouri  Compromise  act,  the  partition  of  the  province  of 
Louisiana  between  free  and  slave  States  was  a  continuation  of 
the  policy  which  divided  the  territory  east  of  the  Mississippi, 
between  the  same  classes  of  States ;  and  as  necessary  then  to 
save  the  Union  as  the  ordinance  of  1787  had  been  to  save  it. 
This  is  the  "understanding"  to  which  those  Senators  bound 
themselves  who  voted  for  Mr.  Turney's  amendment,  on  Tuesday, 
the  6th  day  of  August,  Anno  Domini  1850.  The  amendment 
was  not  agreed  to.  Thirty-two  Senators  voted  against  it — not 
for  unconstitutionally,  but  for  being  the  reverse  in  its  effects 
of  the  measure  it  professed  to  extend,  the  original  line  acting  on 
territory  all  slave,  and  abolishing  it  on  one  side ;  the  extension 
acting  upon  territory  all  free,  and  establishing  slavery  w^here 
it  never  had  been.  The  non-extension  of  this  line  was  a  great 
subject  of  complaint,  and  deluded  many  people  into  a  belief  of 
its  injustice — deceived  by  a  name  which,  being  the  same 
throughout,  was  exactly  the  reverse  in  its  practical  effect.  The 
California  State  bill  passed :  the  Compromise  line  was  not  ex 
tended  to  the  Pacific  :  ten  Senators  signed  a  protest  against  it, 
and  presented  it  to  the  Senate  for  entry  on  the  journal,  (which 
was  refused,)  as  injurious  to  the  slave  States,  "fatal  to  the  peace 
and  equality  of  the  States  they  represented,  and  leading,  if  per 
sisted  in,  to  the  dissolution  of  that  confederacy  in  which  the 
slaveholding  States  have  never  sought  more  than  an  equality, 
and  in  which  they  will  not  he  content  to  remain  with  less"  This 
protest  was  signed  by — Messrs.  Mason  and  Hunter,  of  Virginia  ; 
Butler  and  Barnewell,  of  South  Carolina  ;  Mr.  Turney,  of  Ten 
nessee  ;  Mr.  Pierre  Soule,  of  Louisiana ;  Mr.  Jefferson  Davis, 
of  Mississippi ;  Mr.  Atchison,  of  Missouri ;  and  Messrs.  Yulee, 
and  Morton,  of  Florida. 

It  was  in  this  discussion  on  the  Oregon  territorial  bill  that 


114  EXAMINATION   OF   THE 

Mr.  Calliovm  arrived  at  his  ultimate  doctrines  on  the  slavery 
question.  The  extension  of  the  ordinance  of  '87  to  Oregon 
oTeatly  excited  him — proclaiming  it  the  end  of  the  Union.* 
He  denounced  that  ordinance  as  proper  to  constitute  the  first 
chapter  when  the  history  of  the  dissolution  of  this  Union  should 
be  written  :  he  denounced  the  Missouri  Compromise  Act  as  fit 
to  constitute  the  second  chapter  of  that  same  history  ;  and  he 
denounced  the  extension  of  the  old  ordinance  to  Oregon  as 
furnishing  proper  matter  for  the  third  chapter  of  that  same 
history.  He  declined  to  say  what  would  be  the  fourth  chapter, 
but  clearly  intimated  its  character,  f 

But  while  thus  making  the  Missouri  Compromise  Act  a 
cause  for  the  dissolution  of  the  Union,  and  a  theme  for  the 
future  American  historian  as  such,  yet  it  was  not  for  unconsti- 

*  "  The  great  strife  between  the  North  and  the  South  is  ended.  The  North  is  de 
termined  to  exclude  the  property  of  the  slaveholder,  and,  of  course,  the  slaveholder 
himself,  from  its  territories.  On  this  point  there  seems  to  he  no  division  in  the  North. 
In  the  South,  he  regretted  to  say  there  was  some  division  of  sentiment.  The  effect 
of  this  determination  of  the  North  was  to  convert  all  the  Southern  population  into 
slaves  ;  and  he  would  never  consent  to  entail  that  disgrace  on  his  posterity.  He 
denounced  any  Southern  man  who  would  not  take  the  same  course.  Gentlemen  were 
greatly  mistaken  if  they  supposed  the  presidential  question  in  the  South  would  over 
ride  this  more  important  one.  The  separation  of  the  North  and  the  South  is  com 
pleted.  The  South  has  now  a  most  solemn  obligation  to  perform— to  herself— to  the 
Constitution— to  the  Union.  She  is  bound  to  come  to  a  decision  not  to  permit  this  to 
go  any  further,  but  to  show  that,  dearly  as  she  prizes  the  Union,  there  are  questions 
which  she  regards  as  of  greater  importance  than  the  Union.  She  is  bound  to  fulfil 
her  obligations  as  she  may  best  understand  them.  This  is  not  a  question  of  territorial 
government,  but  a  question  involving  the  continuance  of  the  Union." — Mr.  Calhoun, 
on  Oregon. 

Mr.  Bell,  of  Tennessee,  replied  to  this  annunciation  and  denunciation,  saying : 

"  He  believed  that  the  Senator  from  South  Carolina  (Mr.  Calhoun),  and  those  who 
concurred  with  him,  had  placed  the  South  in  a  wrong  position,  when  they  assumed 
that  by  the  decision  of  this  question  the  die  would  be  cast,  and  the  issue  now  be  made 
which  involves  the  dissolution  of  the  Union.  He  contended  that  the  issue  was  prema 
turely  made  Avhen  it  was  made  on  the  Oregon  question.  If  we  are  to  quarrel  with 
the  North,  let  us  be  sure  that  in  all  respects  our  ground  of  dispute  be  tenable  for  us." 
— Mr.  Bell's  Speech. 

f  "Now  let  me  say,  Senators,  if  our  Union  and  system  of  government  is  doomed 
to  share  the  fate  of  so  many  great  people  who  have  gone  before  us,  the  historian,  who, 
in  some  future  day,  may  record  the  events  leading  to  so  calamitous  a  result,  will 
devote  his  first  chapter  to  the  ordinance  of  1787,  as  lauded  as  it  and  its  authors  have 
been,  as  the  first  in  that  series  which  led  to  it.  His  next  chapter  will  be  devoted  to 
the  Missouri  Compromise,  and  the  next  to  the  present  agitation.  Whether  there  will 
be  another  beyond,  I  know  not ;  it  will  depend  on  what  we  may  do." — Same  speech. 


SUPREME   COURT'S   DECISION,    ETC.  115 

tutionality,  but  for  its  effects — for  the  insult,  injustice,  degrada 
tion  of  preventing  a  slaveholder  from  carrying  his  slave  property 
(i.  e.  the  law  of  the  State  which  makes  it  property)  into  a  com 
mon  estate,  procured  by  the  blood  and  money  of  all.  For  this 
reason  he  condemned  it,  but  not  to  abrogation,  or  repeal,  ex 
pressly  stopping  short  of  these  remedies,  because  of  the  effect 
which  the  "  attempt "  even  would  have  upon  the  Union.  In 
this  sense,  he  thus  delivered  himself : — 

"  After  an  arduous  struggle  of  more  than  a  year  on  the  question, 
whether  Missouri  should  come  into  the  Union,  with  or  without  restric 
tions  prohibiting  slavery,  a  compromise  line  was  adopted  between  the 
North  and  the  South;  but  it  was  done  under  circumstances  which 
made  it  nowise  obligatory  on  the  latter.  It  is  true  it  was  moved  by  one 
of  its  distinguished  citizens,  (Mr.  Clay,)  but  it  is  equally  so  that  it  was 
carried  by  the  almost  united  voice  of  the  North  against  the  almost 
united  voice  of  the  South ;  and  was  thus  imposed  on  the  latter  by  supe 
rior  numbers  in  opposition  to  her  strenuous  efforts.  The  South  has 
never  given  her  sanction  to  it,  or  assented  to  the  power  it  asserted.  She 
was  voted  down,  and  has  simply  acquiesced  in  an  arrangement  which 
she  has  not  had  the  power  to  reverse,  and  which  she  could  not  attempt 
to  do  without  disturbing  the  peace  and  harmony  of  the  Union — to 
which  she  has  ever  been  adverse."* 

I  quote  this  part  of  the  speech  for  two  purposes :  first,  to 
show  that  the  dogma  of  the  unconstitutionally  of  the  Missouri 
Compromise  Act,  had  not  at  that  time,  (Aug.  1848,)  been  invent- 

*  "It  was  on  this  occasion  that  Mr.  Dix,  of  New  York,  brought  out  the  proof  that 
Mr.  Calhoun,  as  a  member  of  Mr.  Monroe's  cabinet,  had  given  a  written  opinion  in 
favor  of  the  constitutionality  of  the  Missouri  Compromise,  and  also  in  favor  of  its 
expediency — a  fact  which  he  himself  had  stated  in  the  Senate  ten  years  before,  (in 
1848,)  and  how  he  blamed  Mr.  Randolph  for  opposing  it,  and  that  he  had  since  changed 
his  opinion  because  it  encouraged  the  abolitionists.  As  for  the  rest  of  his  account  of 
the  compromise,  it  was  all  of  a  piece  with  his  own  forgetfulness  of  the  part  he  had 
acted  in  it — all  moonshine  and  figment  of  the  brain.  It  was  not  Mr.  Clay  who  moved 
the  compromise,  but  it  came  down  from  the  Senate,  where  it  had  been  moved  by  Mr. 
Thomas,  of  Illinois,  a  friend  to  the  South,  and  voted  for  by  every  Southern  senator, 
and  some  of  their  friends  from  the  North.  It  had  been  first  suggested  in  the  House 
the  year  befor  e  it  was  passed  by  Mr.  Louis  M'Lane,  of  a  slaveholding  State,  and  as  a 
friend  to  the  South,  and  as  he  said,  with  the  approbation  of  Southern  members.  It  was 
moved  in  the  House  by  Mr.  Storrs,  of  New  York,  a  friend  of  the  South,  but  rejected  by 
Northern  votes.  It  was  not  imposed  upon  the  South  by  Northern  votes,  but  sought  by 
the  South  and  obtained  by  its  vote — the  whole  vote  in  the  Senate  and  a  majority  in  the 
House.  The  South  did  give  her  sanction  to  it,  in  her  almost  undivided  support  of  its 
re-enactment  at  the  admission  of  Texas. 


116  EXAMINATION   OF   THE 

ed  ;  and,  secondly,  that  its  abrogation  was  not  to  be  attempted,  be 
cause  "the  attempt  to  reverse  it  would  disturb  the  peace  and  har 
mony  of  the  Union"  Mr.  Calhoim  was  a  man  of  head  and  sys 
tem,  and  though  working  at  a  dissolution  of  the  Union  since  the 
year  1830,  his  system  was  to  throw  upon  the  North  the  blame  of 
the  separation — to  make  the  segregation  of  the  slave  States  an  act 
of  necessity — of  self-defence — forced  upon  them  by  aggressions, 
encroachments,  and  crusades  against  their  slave  property.  To 
attack  the  Missouri  Compromise  was  to  give  up  that  defensive 
attitude — to  make  the  South  the  aggressor — and  consequently  to 
make  it  responsible  for  disturbing  the  peace  and  harmony  of  the 
Union,  and  also  for  furnishing  matter  for  the  contents  of  that 
fourth  chapter  in  the  history  of  its  dissolution  which  he  shad 
owed  forth,  but  forbore  to  name. 

It  was  in  one  of  the  bills  brought  forward  at  this  period, 
(July,  1848,)  to  give  governments  to  the  newly  acquired  Terri 
tories,  that  Mr.  Calhoun  gave  glimpses  of  two  doctrines  which, 
classing  with  the  vagaries  of  an  over-excited  imagination,  at 
tracted  no  attention  at  the  time,  but  have  since  acquired  an 
ominous  pre-eminence ;  namely,  1.  The  self-extension  of  the 
Constitution  to  Territories,  carrying  slavery  along  with  it.  2.  The 
remission  of  the  slavery  question  in  Territories  to  the  Supreme 
Court  of  the  United  States,*  by  appeals  from  the  Territorial 
Courts,  authorized  to  try  questions  of  freedom  or  slavery  between 
the  slave  and  his  master.  The  first  of  these  doctrines  was  ex 
hibited  in  the  declaration  quoted  in  the  introductory  note  to  this 
examination,  that  upon  the  instant  of  the  ratification  of  the 
treaty  with  Mexico,  the  sovereignty  of  the  United  States  enter 
ed  upon  the  acquired  territory,  carrying  with  it  the  Constitu- 

*  "  Writs  of  error  and  appeals  from  the  final  decisions  of  said  Supreme  Court  shall 
be  allowed,  and  may  be  taken  to  the  Supreme  Court  of  the  United  States,  in  the  same 
manner  and  under  the  same  regulations  as  from  the  circuit  courts  of  the  United  States, 
except  only  that  in  all  cases  involving  title  to  slaves  the  said  writs  of  error  or  appeals 
shall  be  allowed  and  decided  by  the  said  Supreme  Court,  without  regard  to  the  value 
of  the  matter,  property,  or  title  in  controversy  ;  and  except,  also,  that  a  writ  of  error 
or  appeal  shall  be  allowed  to  the  Supreme  Court  of  the  United  States  from  the  decision 
of  the  Supreme  Court  created  by  this  act,  or  any  judges  thereof,  or  of  the  district 
courts  created  by  this  act,  or  of  any  judge  thereof,  upon  any  writ  of  habeas  corpus 
involving  the  question  of  personal  freedom ;  and  each  of  the  said  district  courts  shall 
have  and  exercise  the  same  jurisdiction  in  all  cases  arising  under  the  Constitution  and 
laws  of  the  United  States,  as  is  vested  in  the  circuit  and  district  courts  of  the  United 
States ;  and  the  first  six  days  of  every  term  of  said  courts,  or  so  much  thereof  as 


SUPREME   COURT'S   DECISION,    ETC.  117 

tion,  with  its  overriding  control  over  all  the  laws  and  institu 
tions  of  Mexico  inconsistent  with  it.  The  second  was  formally 
proposed  in  a  bill  to  give  governments  to  California,  New  Mexico, 
and  Oregon,  all  lumped  together  in  one  conglomerate  enactment, 
with  a  special  provision  to  authorize  the  initiation  of  freedom 
proceedings  in  the  two  former  by  the  slave  against  his  master, 
either  in  a  trial  at  law,  or  upon  a  writ  of  habeas  corpus'  with 
appeal  to  the  Supreme  Court.  This  bill  passed  the  Senate,  after 
a  curious  debate,  of  more  import  now  than  then,  but  was  unce 
remoniously  repulsed  from  the  House  without  even  the  respect 
of  a  first  reading — being  tabled  for  ever  the  instant  its  advent 
was  announced.  It  was  a  strange  bill,  and  voted  for  by  those 
who  did  vote  for  it,  upon  most  contradictory  reasons — some 
because  they  deemed  it  the  best  kind  of  a  Wilmot  proviso — some 
to  gratify  Mr.  Calhoun,  whose  solicitude  for  it  was  excessive — 
some  as  for  an  absurdity  which  could  not  pass,  and  if  it  did, 
could  have  no  operation,  as  no  man  would  carry  a  negro  free  or 
bond,  to  California  or  New  Mexico,  just  to  try  the  question  of 
freedom  with  him,  with  appeal  to  the  Supreme  Court — a  trial  in 
which  the  owner  would  be  loser,  whether  he  won  or  lost  the 
suit.  For  the  slave  being  entitled  to  his  liberty  while  the  suit 
was  going  on,  would  be  free  during  that  period,  say  seven 
years ;  and  having  no  property,  and  subject  to  no  process  for 
costs  or  damages,  the  owner  would  merely  get  him  back  at  the 
end  of  the  suit — if  he  could  catch  him  after  seven  years  of  free 
range  from  the  shores  of  the  Pacific  to  Washington  City — minus 
the  loss  of  his  labor  for  the  time,  his  court  fees,  and  lawyers' 
fees,  his  personal  expenses  attending  courts  in  California,  and 
in  the  District  of  Columbia,  and  in  his  journey  ings  backwards 
and  forwards  all  the  while,  and  damage  to  his  other  neglected 
business — besides  the  degradation  of  being  sued  by  his  own 
negro,  and  dragged  by  him  across  the  continent,  and  outshone 
by  him  in  the  splendor  of  his  living  and  in  liberality  to  his 
counsel  (for  the  anti-slavery  societies  would  supply  him  with 
bags  of  gold,  while  his  poor  master  would  be  selling  his  stinted 
crops  to  get  the  means  of  carrying  on  the  suit).  With  such 

shall  be  necessary,  shall  be  appropriated  to  the  trial  of  causes  arising  under  the  said 
Constitution  and  laws;  and  writs  of  error  and  appeals,  in  all  such  cases,  shall  be  made 
to  the  Supreme  Court  of  said  Territory,  the  same  as  in  other  cases." — Section  24  of  the 
Conglomerate  bill. 


118  EXAMINATION    OF   THE 

consequences  before  him,  no  man  would  carry  his  slave  six 
thousand  miles  by  water,  and  over  free  soil  at  Panama  or  Nica 
ragua,  or  three  thousand  miles  over  land  and  Indian  country 
between  the  old  States  and  the  Pacific  Ocean,  just  to  begin  that 
suit  with  him  which  the  Senate's  bill  proposed.  Yet  the  bill 
was  the  work  of  a  Select  Committee,  eight  in  number,  (being 
three  more  than  the  usual  Senate  committees,)  including  Mr. 
Calhoun,  and  a  majority  of  his  friends  on  the  slavery  question.* 
Mr.  Badger,  of  North  Carolina,  saw  in  it  a  surrender  of  the 
rights  of  the  South,  and  as  effectual  a  bar  to  the  introduction  of 
slavery  as  the  Wilmot  proviso  could  have  been.  He  said,  "  He 
regarded  this  bill  as  a  complete  surrender  of  the  rights  of  the 
South.  He  believed  negro  slavery  would  be  as  effectually  ex 
cluded  by  this  bill  as  if  the  Wilmot  proviso,  or  any  other  bill, 
had  passed.f" 

It  was  in  the  discussion  on  this  bill  that  those  remarks  upon 
the  probable  decision  of  the  Supreme  Court  were  made  which 
were  quoted  in  the  Introductory  Note,  and  which  foreshadowed 
the  fate  of  any  judges  who  should  have  to  pronounce  upon 
the  question  of  African  slavery,  as  a  political  question  under 
our  Constitution.  The  remarks  and  speculations  ran  right  off 
to  the  geographical  locus  in  quo  of  each  judge  !  and  when  that 
could  take  place  in  the  American  Senate,  and  in  anticipation  of 
any  decision,  what  might  not  be  expected  after  an  actual  deci 
sion,  and  a  strongly  developed  geographical  line,  in  the  line  of 
division  between  different  opinions  ? 

It  was  also  in  the  same  bill — the  conglomerate  for  giving 
governments  to  three  Territories  together — that  was  placed  that 
section,  unobserved  at  the  time,  as  mentioned  in  the  Introduc 
tion  to  this  Examination,  which  proposed  to  extend  the  Consti- 

*  They  were: — Messrs.  John  M.  Clayton,  of  Delaware;  Bright,  of  Indiana  ;  Cal 
houn,  of  South  Carolina ;  Clarke,  of  Rhode  Island  ;  Atchison,  of  Missouri ;  Phelps,  of 
Vermont ;  Dickenson,  of  New  York ;  Underwood,  of  Kentucky.  Of  this  committee, 
two  of  its  members,  Messrs.  Clarke  and  Underwood,  voted  against  the  hill.  Of  course, 
the  authors  of  the  bill  helieved  that  a  slave  of  the  African  race  could  maintain  a  suit  in 
the  United  States  Supreme  Court. 

t  Mr.  Benton  voted  for  it,  (taking  care  to  condemn  it  in  his  speech,)  "  to  estop  Mi\ 
Calhoun,"  with  a  measure  of  his  own — a  Wilmot  proviso  of  his  own  concoction.  Cer 
tainly,  no  AVilmot  ever  devised  so  efficacious  a  measure  for  keeping  slavery  out  of  New 
Mexico  and  California,  and  Mr.  Benton  was  perfectly  willing  that  Mr.  Calhouu  should 
have  that  credit. 


SUPREME   COURT'S    DECISION,    ETC.  119 

tution  to  Territories.  It  was  in  section  35  of  the  bill — that  is  to 
say,  in  the  penultimate  section  of  an  enormous  bill  of  36  sec 
tions,  where  no  one  would  look  for  a  new  principle,  that  this 
unprecedented  novelty  found  its  berth.  Nothing  but  details  and 
matters  of  form  go  to  the  end  of  the  bill — its  whole  power  and 
character  being  in  a  few  of  the  front  sections.  Parliarnentarily, 
nothing  but  formal  details  to  carry  out  a  principle  can  follow 
the  principle,  always  put  foremost.  To  these  front  sections  the 
opponents  of  bills  look ;  and  fighting  the  battle  upon  these 
main  sections,  the  details  are  left  with  the  friends  of  the 
measure.  They  are  considered  matters  of  form,  to  carry  out 
what  the  leading  sections  establish ;  and,  in  that  point  of  view, 
are  left  to  the  committee  who  prepares  the  bill.  This  is  the 
case  in  all  bills,  even  those  of  considerable  length,  where  the 
whole  could  be  read  in  a  reasonable  time.  How  much  more 
so  in  an  enormous  bill  of  six  and  thirty  sections  !  and  that  upon 
as  old  a  subject  as  territorial  government,  all  the  details  of 
which  had  been  a  matter  of  course  since  the  ordinance  of  1787. 
Of  such  a  bill  it  may  well  be  conceived  that  none  but  those  who 
drew  it  ever  saw  the  concluding  sections ;  and  such  I  am  able  to 
say,  upon  the  highest  presumptive  evidence,  was  the  case  with 
this  conglomerate  bill  of  36  sections.  That  presumption  is 
founded  upon  two  facts :  first,  that  no  speaker  for,  or  against 
the  bill,  ever  alluded  to  it  in  a  single  word  spoken  !  an  absence 
of  remark  on  such  a  new  and  startling  provision  which  can  only 
be  accounted  for  upon  the  hypothesis  of  a  total  absence  of  all 
knowledge  of  its  existence.  Secondly,  that  I  myself  knew 
nothing  of  it !  and  so  actually  voted  for  a  bill  containing  a  novel 
provision,  never  heard  of  before — and  of  absurd  impossibility. 
The  section  was  in  these  words  : 

SECTION  35.  And  be  it  further  enacted.  That  the  Constitution  and 
laws  of  the  United  States  are  hereby  extended  over,  and  declared  to  be 
in  force  in  said  Territories  of  Calif ornia  and  New  Mexico,  so  far  as 
the  same,  or  any  provision  thereof,  may  be  applicable." 

As  the  bill  did  not  pass  the  House,  this  section,  though  it 
passed  the  Senate,  became  in  fact  as  if  it  never  had  been  ;  but 
it  Answers  a  purpose  now,  in  showing  that  the  framers  of  the 
bill  then  deemed  an  act  of  Congress  necessary  to  extend  the 
Constitution  over  Territories,  and  give  it  force  and  effect  therein 


120 


EXAMINATION    OF   THE 


—the  same  as  acts  of  Congress  are  so  extended  :  with  this  in 
congruity,  that  the  laws  so  extended  being  rules  of  action,  are 
capable  of  operation  ;  while  the  Constitution,  being  a  collection 
of  principles,  can  operate  nowhere  until  these  principles  are 

vitalized  by  law :    and  that  can  only  be  done  by  Congress 

Congress  alone  being  the  body  which  can  legislate  under  the 
Constitution.  So  that,  if  the  Constitution  could  be  extended  to 
a  Territory,  not  a  provision  in  it  could  take  effect  until  Congress 
had  passed  an  act  to  put  it  in  operation. 

Nine  months  afterwards,  that  is  to  say,  at  the  end  of  the 
ensuing  session,  (March  3d,  1849,)  that  attempt  was  made 
through  Mr.  Walker,  of  Wisconsin,  to  extend  the  Constitution 
to  the  three  Territories  in  a  lump,  which  has  been  noticed  here 
tofore,  and  which  being  repulsed,  the  higher  ground  is  taken  that 
the  Constitution  goes  of  itself  to  Territories,  carrying  slavery 
along  with  it,  in  defiance  of  Congress  and  the  people  of  the 
Territory.  And  this  is  what  the  Supreme  Court  has  decided— 
the  judicial  power  deciding  a  political  question !  and  in  a  way 
which  the  political  power  had  twice  repulsed.* 

*  One  good  effect  the  decision  of  the  Court  has  had,  and  that  is— the  extermina 
tion  of  Squatter  Sovereignty.  It  tears  up  that  doctrine  root  and  branch  ;  and,  it 
would  seem,  to  the  gratification  of  its  votaries.  For  they  rally  to  the  Court's  decision, 
and  make  adherence  to  it  the  test  of  democracy,  with  the  same  zeal  with  which  they 
supported  that  doctrine  during  its  brief  day. 

What  tests  of  democracy  wo  have  seen  in  three  brief  years!  Adherence  to  the 
Missouri  Compromise  the  test  when  Mr.  Douglass  brought  in  his  Nebraska  bill,  and 
until  Mr.  Dixon's  proposed  amendment  started  new  game.  Then  destruction  to  the 
Compromise,  and  devotion  to  Squatter  Sovereignty  was  the  test.  And  this  test  con 
tinued  for  about  two  years,  when  it  was  exploded  by  the  Supreme  Court's  decision. 
Then  that  decision  becomes  the  test,  and  the  democrat  is  politically  excommunicated 
who  does  not  change  again— give  up  Squatter  Sovereignty,  as  he  did  the  Compromise ; 
and  take  the  Constitution,  per  set  as  sole  slavery  legislators  in  a  territory,  and  only  a 
one-sided  legislation !  to  carry  slavery  into  all  territories,  and  abolish  it  in  none  !  and 
keeping  it,  and  protecting  it,  there  in  defiance  of  Congress,  and  the  people,  and  in  de 
fiance  of  all  laws  previously  existing  there.  And  this  to  be  done  by  virtue  of  a  Consti 
tution  in  which  its  framers  would  not  permit  the  word  "  slave,"  or  any  equivalent 
phrase,  to  be  used  ! 


SUPEEME   COURT'S   DECISION,   ETC.  121 


CONCLUSION. 

This  completes  the  historical  view  which  I  proposed  to  take 
of  the  Supreme  Court's  decision  on  the  two  points  deemed  po 
litical — 1.  The  invalidation  of  the  Missouri  Compromise  Act ; 
2.  The  self-extension  of  the  Constitution  to  Territories,  carrying 
African  slavery  along  with  it.  And  the  result  is,  that  the  de 
cisions  conflict  with  the  uniform  action  of  all  the  departments 
of  the  Federal  Government  from  its  foundation  to  the  present 
time,  and  cannot  be  received  as  rules  to  govern  Congress  and 
the  people  without  reversing  that  action,  and  admitting  the  po 
litical  supremacy  of  the  Court,  and  accepting  an  altered  Con 
stitution  from  its  hands,  and  taking  a  new  and  portentous  point 
of  departure  in  the  working  of  the  Government.  These  deci 
sions  being  political,  are  dependent  upon  moral  considerations 
for  their  effect.  They  cannot  be  enforced.  No  mandamus  can 
be  directed  to  Congress  and  the  people  :  no  process  of  contempt 
can  issue  against  them.  Influence — not  authority — is  the  only 
power  the  Court  can  wield.  This  being  the  case,  and  the  two 
conflicting  powers,  (that  of  two  generations  on  one  hand,  and  the 
Supreme  Court  on  the  other,)  being  reduced  to  moral  consider 
ations  to  establish  the  best  title  to  supremacy,  it  becomes  indis 
pensable  to  run  a  comparison  between  their  respective  claims 
to  superiority,  and  strike  the  balance  on  the  side  that  shows  the 
best  title.  This  I  propose  to  do,  and  to  make  the  points  of  com 
parison  co-extensive  with  the  influencing  considerations  in  the 
whole  case  :  1.  Numbers  on  each  side.  2.  Qualifications  for 
forming  a  correct  judgment.  3.  Adaptation  of  times  to  calm 
consideration.  4.  Freedom  from  connection  with  party  contests. 
5.  Jurisdiction.  6.  Unanimity,  7.  Weight  of  reasons: — and 
of  these,  each  in  its  order. 


122  EXAMINATION    OF   THE 

1.  The  numbers.  These  are  as  units  to  myriads.  Two  gen 
erations  stand  on  one  side  :  six  judges  sit  on  the  other,  and 
these  six  morally  reduced  to  five,  by  the  non-concurrence  in  one 
of  them  in  the  reasons  of  the  others.  So  that,  compared  by 
numbers,  the  result  is  that  one  side  counts  with  the  stars  of 
heaven  :  the  other,  with  the  fingers  or  toes  on  the  hand  or  foot. 
— 2.  Qualifications  for  forming  a  correct  judgment.  Here  the 
comparison  is  entirely  in  favor  of  the  same  side.  They  were 
the  men  who  formed  the  Constitution,  and  put  it  into  operation, 
while  the  Court  are  only  new  comers  in  that  field,  and  can 
hardly  be  supposed  to  know  more  about  the  Constitution  than 
those  who  made  it,  and  the  two  generations  who  agreed  with 
them.  Without  disparagement  to  the  members  of  the  Court, 
it  must  be  admitted  that  the  other  side  is  their  equal  in  point 
of  ability,  and  these  equals  outnumbering  them  as  myriads  do 
units.  And,  without  disparaging  the  legal  profession,  it  must 
be  remembered  that  the  lawyer  and  the  statesman  are  held  to 
be  incompatible  characters' — the  cast  of  mind  which  qualifies  a 
man  for  the  great  lawyer,  disqualifying  him  for  the  safe  states- 
'man ;  *  and  in  this  case  our  ancestors  were  statesmen,  the  judges 
lawyers,  and  the  questions  political. — 3.  Adaptation  of  times  to 
calm  consideration.  Here  the  advantage  is  with  the  twro  gene 
rations.  They  acted  in  times  of  calm :  the  judges  during  a 
storm  of  the  passions.  They  acted  upon  an  old  light,  shining 
steadily  in  a  calm  atmosphere  :  the  judges  on  a  new  light,  sud 
denly  breaking  out,  and  flashing  fitfully  in  the  bursts  of  a 
raging  tempest.  And  such  new  lights  are  not  considered  safe 
guides  in  law,  religion,  or  politics. f — 4.  Freedom  from  connec- 

*  See  the  speeches  of  "William  Pitt,  (the  father,) — of  Burke,  Fox,  Sheridan,  and 
the  American  John  Randolph ;  and  the  histories  of  almost  all  great  lawyers  who  have 
turned  their  hands  to  politics.  Also  rememher  Wehster,  already  quoted,  going  out  of 
his  way  to  point  out  lawyers  and  judges  as  peculiarly  suhject  to  inaccurate  ideas  on 
the  question  of  the  Constitution  and  the  Territories. 

f  And  of  this  opinion  was  the  present  Supreme  Court  some  two  years  ago,  (1 855,) 
as  quoted  by  Mr.  Justice  M'Lean  in  his  dissenting  opinion— Mr.  Justice  Grier  being 
the  organ  of  the  Court. 

"We  entertain  the  highest  respect  for  that  learned  Court,  (the  Supreme  Court  of 
Michigan,)  and  in  any  question  affecting  the  construction  of  their  own  laws,  where  we 
entertain  any  doubt,  would  be  glad  to  be  relieved  from  doubt  and  responsibility  by  re 
posing  on  their  decision.  There  are,  it  is  true,  many  dicta  to  be  found  in  our  decisions, 
averring  that  the  courts  of  the  United  States  are  bound  to  follow  the  decisions  of  the 


SUPREME  COURT'S  DECISION,  ETC.  123 

tion  with  party  contests.  "With  our  ancestors  these  questions 
knew  no  party,  political  or  geographical.  The  Republican  and 
the  Federalist  of  the  first  generation,  the  Whig  and  the  Democrat 
of  the  second, — the  man  of  the  North,  South,  East  and  West, 
— all  concurred,  (until  the  new  light  sprung  up,)  in  one  concur 
rent  opinion,  manifested  by  continual  acts,  that  Congress  had 
power  to  legislate  upon  slavery  in  Territories,  and  that  the  Con 
stitution  did  not  extend  to  Territories  :  while  the  new  opinion 
which  conflicts  with  that,  was  born  of  party,  and  has  be 
come  a  new  test  of  party,  (of  democracy,)  outlawing  from  the 
democratic  ranks  every  man  that  does  not  go  it — that  does  not 
keep  up  with  the  changes,  from  the  abrogation  of  the  Missouri 
Compromise  (which  saved  the  Union)  to  squatter  sovereignty, 
^which  killed  the  compromise  ;)  and  thence  to  the  decisions  of 
the  Supreme  Court  (which  kills  both).  So  that  the  new  doc 
trine  is  both  the  child  and  champion  of  party,  and  itself  a 
touchstone  of  party. — 5.  Jurisdiction.  As  a  political  question, 
the  Court  had  no  right  to  decide  it,  even  if  it  came  fairly  before 
it.  Congress  had  not  only  a  right  to  act,  but  was  bound  to  do 
so ;  and  always  had  the  subject  fairly  before  it  in  seventy  years' 
necessity  to  act  upon  it.  Without  right  to  try  it,  even  if  the 
case  before  them  made  it  necessary,  yet  here  the  Court  had  no 
jurisdiction,  and  dismissed  it  for  want  of  jurisdiction ;  and 


State  courts  on  the  construction  of  their  own  laws.  But  although  this  may  he  cor 
rect,  yet  a  rather  strong  expression  of  a  general  rule,  it  cannot  he  received  as  the 
annunciation  of  a  maxim  of  universal  application.  Accordingly,  our  reports  furnish 
many  cases  of  exceptions  to  it.  In  all  cases  where  there  is  a  settled  construction  of 
the  laws  of  a  State,  hy  its  highest  judicature  established  by  admitted  precedent,  it  is 
the  practice  of  the  courts  of  the  United  States  to  receive  and  adopt  it,  without  criti 
cism  or  further  inquiry.  When  the  decisions  of  the.  State  court  are  not  consistent, 
we  do  not  feel  hound  to  follow  the  last,  if  it  is  contrary  to  our  own  convictions ;  and 
much  more  is  this  the  case  where,  after  a  long  course  of  consistent  decisions,  some 
new  light  springs  up,  or  an  excited  public  opinion  has  elicited  new  doctrines  subver 
sive  of  former  safe  precedent." 

Upon  which  Mr.  Justice  M'Lean  remarks  : 

"  These  words,  it  appears  to  me,  have  a  stronger  application  to  the  case  before  us 
than  they  had  to  the  cause  in  which  they  were  spoken  as  the  opinion  of  this  court ; 
and  I  regret  that  they  do  not  seem  to  he  as  fresh  in  the  recollection  of  some  of  my 
brethren  as  in  my  own.  For  twenty-eight  years,  the  decisions  of  the  Supreme  Court 
of  Missouri  were  consistent  on  all  the  points  made  in  this  case.  But  this  consistent 
course  was  suddenly  terminated,  whether  by  some  new  light  suddenly  springing  up, 
or  an  excited  public  opinion,  or  both,  it  is  not  necessary  to  say." — Dissenting  Opinion. 


EXAMINATION   OF  THE 

thus,  left  without  a  leg  to  stand  on,  it  reached  far  over  to  get 
hold  of  the  political  questions  by  virtue  of  a  rule  which  had  no 
application,  even  in  an  actual  existing  case  :  so  that,  on  the 
point  of  jurisdiction,  our  ancestors  had  it,  and  were  under  a 
necessity  to  act  upon  it :  the  Court  had  it  not,  and  assumed  it 
upon  a  supposition  which  had  nothing  to  rest  on,  and  as  an  adden 
dum  to  a  case  which  had  no  existence,  and  by  virtue  of  a  rule 
which  had  no  application. — 6.  Unanimity  in  the  decisions.  Here 
again  the  flagrant  contrast  appears.  Our  ancestors  were  the 
myriad,  and  acted  through  seventy  years  without  division  of 
sentiment..  All  departments  of  the  Government — legislative, 
executive,  and  judicial — and  both  classes  of  governments,  State 
and  Federal — men  changing  all  the  while — acted  with  one 
voice.*  The  Court  was  but  nine — a  single  term — the  same  men 

*"  The  judicial  mind  of  this  country,  State  and  Federal,  has  agreed  on  no  subject, 
within  its  legitimate  action,  with  equal  unanimity,  as  on  the  power  of  Congress  to  es 
tablish  territorial  governments.  No  court,  State  or  Federal,  no  judge  or  statesman, 
is  known  to  have  had  any  doubts  on  this  question  for  nearly  sixty  years  after  the 
power  was  exercised.  Such  governments  have  been  established  from  the  sources  of 
the  Ohio  to  the  Gulf  of  Mexico,  extending  to  the  Lakes  on  the  north  and  the  Pacific 
Ocean  on  the  west,  and  from  the  lines  of  Georgia  to  Texas.  Great  interests  have 
grown  up  under  the  territorial  laws  over  a  country  more  than  five  times  greater  in  ex 
tent  than  the  original  thirteen  States ;  and  these  interests,  corporate  or  otherwise, 
have  been  cherished  and  consolidated  by  a  benign  policy,  without  any  one  supposing 
the  law-making  power  had  united  with  the  Judiciary,  under  the  universal  sanction  of 
the  whole  country,  to  usurp  a  jurisdiction  which  did  not  belong  to  them.  Such  a  dis 
covery  at  this  late  date  is  more  extraordinary  than  any  thing  which  has  occurred  in 
the  judicial  history  of  this,  or  any  other  country.  What  do  the  lessons  of  wisdom  and 
experience  teach,  under  such  circumstances,  if  the  new  light,  which  has  so  suddenly 
and  unexpectedly  burst  upon  us,  be  true  ?  Acquiescence  ;  acquiescence  under  a  set 
tled  construction  of  the  Constitution  for  sixty  years,  even  if  erroneous." — Mr.  Jus 
tice  M'Lean. 

To  the  same  effect  Mr.  Justice  Catron,  in  his  concurring  opinion,  who,  although 
agreeing  with  the  Court  in  its  judgment,  did  so  for  a  different  reason ;  resting  his  own 
on  a  supposed  violation  of  the  treaty  with  France,  and  the  equality  of  States  under 
the  Constitution.  Thus : 

"  More  than  sixty  years  have  passed  away  since  Congress  has  exercised  power  to 
govern  the  Territories,  by  its  legislation  directly,  or  by  territorial  charters,  subject  to 
repeal  at  all  times,  and  it  is  now  too  late  to  call  that  power  into  question,  if  this  Court 
could  disregard  its  own  decisions  ;  which  it  cannot  do,  as  I  think.  It  was  held  in  the 
case  of  Cross  v.  Harrison,  (16  How.,  193-'4,)  that  the  sovereignty  of  California  was 
in  the  United  States,  in  virtue  of  the  Constitution,  by  which  power  had  been  given  to 
Congress  to  dispose  of  and  make  all  needful  rules  and  regulations  respecting  the  ter 
ritory  or  other  property  belonging  to  the  United  States,  with  the  power  to  admit  new 
States  into  the  Union.  That  decision  followed  preceding  ones,  there  cited.  The  ques- 


SUPREME  COURT'S  DECISION,  ETC.  125 

all  the  while  ;  and  great  diversity  of  opinion.  Two  of  the 
Justices  dissent  entirely  from  the  opinion  of  the  Court,  and  give 
well  reasoned  arguments  against  that  opinion,  and  in  favor  of 
a  different  one.  Another  of  the  Justices  (Mr.  Justice  Nelson) 
abstained  from  expressing  any  opinion  on  the  point  in  question. 
That  reduced  the  concurring  Justices  to  six  ;  and  of  these,  one, 
(Mr.  Justice  Catron,)  while  concurring  in  the  judgment,  did  so 
for  different  reasons,  wholly  incompatible  with  those  of  the 
Court,  and  attacked  their  reasons  as  wholly  unfounded.  And, 
as  in  this  case  we  only  go  by  moral  weight,  his  vote,  though 
legally  counted  against  Scott,  weighs  nothing  for  the  Court's 
opinion ;  but  the  contrary,  as  impeaching  its  reasons  :  which  re 
duces  the  concurrent  judges  to  five — a  majority  of  one.  And 
then  two  of  the  remaining  concurrents  give  elaborate  separate 
opinions,  agreeing  in  the  result,  but  for  reasons  not  always  the 
same  ;  and,  to  the  extent  of  that  difference,  invalidating  the 
reasons  of  the  Court,  and  lessening  the  weight  of  its  decision. 
So  that,  upon  the  head  of  unanimity,  the  difference  again  in 

tion  was  then  presented,  how  it  was  possible  for  the  judicial  mind  to  conceive  that  the 
United  States  Government,  created  solely  by  the  Constitution,  could,  by  a  lawful 
treaty,  acquire  territory  over  which  the  acquiring  power  had  no  jurisdiction  to  hold 
and  govern  it,  by  force  of  the  instrument  under  whose  authority  the  country  was  ac 
quired  ;  and  the  foregoing  was  the  conclusion  of  this  Court  on  the  proposition.  What 
was  there  announced,  was  most  deliberately  done,  and  with  a  purpose.  The  only 
question  here  is,  as  I  think,  how  far  the  power  of  Congress  is  limited." — Mr.  Justice 
Catron,  concurring. 

"My  opinion  is,  that  the  third  article  of  the  treaty  of  1803,  ceding  Louisiana  to 
the  United  States,  stands  protected  by  the  Constitution,  and  cannot  be  repealed  by 
Congress.  And,  secondly,  that  the  act  of  1820,  known  as  the  Missouri  Compromise, 
violates  the  most  leading  features  of  the  Constitution — a  feature  on  which  the  Union 
depends,  and  which  secures  to  the  respective  States  and  their  citizens  an  entire 
EQUALITY  of  rights,  privileges,  and  immunities." — Same. 

"  It  would  certainly  be  a  subject  of  regret  that  the  conclusions  of  the  Court 
have  not  been  assented  to  by  all  of  its  members,  if  I  did  not  know  from  its  history, 
and  my  own  experience,  how  rarely  it  has  happened  that  the  judges  have  been  unani 
mous  upon  Constitutional  questions  of  moment,  and  if  our  decision  in  this  case  had 
not  been  made  by  as  large  a  majority  of  them  as  has  been  usually  had  on  constitu 
tional  questions  of  importance.  Two  of  the  judges,  Messrs.  Justices  M'Lean  and  Curtis, 
dissent  from  the  opinion  of  the  Court.  A  tliird,  Mr.  Justice  Nelson,  gives  a  separate 
opinion  upon  a  single  point  in  the  case,  with  which  I  concur,  assuming  that  the  Cir 
cuit  Court  had  jurisdiction  ;  but  he  abstains  altogether  from  expressing  any  opinion 
upon  the  eighth  section  of  the  act  of  1820,  known  commonly  as  the  Missouri 
Compromise  law ;  and  six  of  us  declare  that  it  was  unconstitutional." — Mr.  Justice 
Wayne. 


126  EXAMINATION   OF   THE 

favor  of  our  ancestors  is  as  a  mountain  to  a  mustard  seed.  And 
then,  again,  in  these  differences  of  opinion  the  geographical 
line  which  divides  the  free  from  the  slave  States  was  palpably 
developed,  while  no  such  line  was  ever  seen  in  the  Congress 
decisions.  To  conclude  this  head,  it  is  to  be  remembered  that 
two  Justices  of  the  Court  who  had  voted  for  the  Missouri  Com 
promise,  (Messrs.  Baldwin,  of  Pennsylvania,  and  Philip  P.  Bar- 
bour,  of  Virginia,)  and  became  judges  afterwards,  had  died  be 
fore  the  decision — who,  if  they  had  lived,  and  retained  their 
former  opinions,  would  have  made  the  majority  the  other  way.* 
— 7.  Weight  of  reasons  on  each  side.  This  is  a  difficult  point 
of  comparison,  as  the  Court  points  to  no  clause  in  the  Constitu 
tion  on  which  it  relies  to  overturn  the  practice  of  seventy  years. 
Its  great  labor  seems  to  have  been,  by  a  careful  verbal  exami 
nation  of  the  Constitution,  to  prove  that  it  did  not  authorize 
Congress  to  legislate  upon  slavery — an  unnecessary  labor,  as 
the  whole  territorial  legislation  of  Congress,  from  the  7th  day 
of  August,  1789,  has  been  independent  of  the  Constitution,  and 
incompatible  with  it,  and  for  the  endless  reason  that  the  Consti 
tution  was  not  made  for  Territories,  nor  extends  to  them,  nor 
gives  them  a  single  right  under  it.  Naming  no  clause  which 
gives  the  right  of  carrying  slaves  into  Territories  against  an  act 
of  Congress,  they  derive  it  from  general  political  considerations 
founded  in  the  equality  of  States,  the  common  right  of  all  to 
the  enjoyment  of  the  common  territory,  and  the  denial  of  that 

*  The  Boston  Law  Reporter  for  June,  1857,  contains  an  article  ascribed  to  John 
Lowell  and  Horace  Gray,  jr.,  Esquires,  two  well-known  legal  gentlemen  of  Boston, 
in  which  the  discrepancies  among  the  members  of  the  Court,  on  another  point  in  the 
Dred  Scott  case,  show  the  judgment  of  Courts  to  be  too  uncertain  to  be  admitted 
as  a  political  expounder  of  the  Constitution.  Thus  : 

"As  to  the  question,  "  Can  a  negro  be  a  citizen  of  the  United  States  ?"  It  has 
been  commonly  supposed  that  the  Court  decided  this  question  in  the  negative.  This 
is  a  mistake.  From  the  form  in  which  it  was  presented,  it  was  very  doubtful  whether 
it  was  before  the  Court  for  a  decision.  Four  of  the  nine  judges  thought  that  it  was  ; 
these  were  the  Chief  Justice,  and  Justices  Wayne  and  Daniel,  who  answer  the  question 
in  the  negative,  and  Justice  Curtis,  who  answered  it  in  the  affirmative.  Of  the  judges 
who  gave  no  opinion  on  the  point,  one  (Judge  M'Lean)  declares  that  if  he  answered 
the  question  at  all  it  would  be  in  the  affirmative  ;  Judge  Catron,  when  Chief  Justice  of 
the  Supreme  Court  of  Tennessee,  gave  an  opinion  directly  involving  an  affirmative 
answer  to  the  question ;  the  three  other  judges  give  no  clue  to  their  opinions.  On 
this  question,  then,  the  Court  stands  thus  :  Three  in  the  affirmative,  three  in  the  nega 
tive,  and  three  silent." 


SUPREME  COURT'S  DECISION,  ETC.  127 

right  in  the  prohibition  of  slavery.  In  this  general  way  the 
Court  gets  its  authority,  the  powers  and  rights  for  which  it  con 
tends  seeming  to  ooze  out  of  the  body  of  the  Constitution  in  a 
sort  of  political  insensible  perspiration,  which  being  collected 
and  condensed,  form  little  streams  leading  to  the  conclusions 
they  arrive  at — running  in  different  channels,  but  falling  into 
the  same  gulf.*  Such  invisible,  impalpable  exudations  cannot 
be  weighed  as  reasons,  and  besides,  had  been  all  addressed  in 
vain  to  the  political  power — to  Congress  itself — to  get  it  to  do 
what  the  Court  has  done.  On  the  other  hand,  all  the  reasons  for 
the  old  opinions  are  palpable  and  visible,  have  been  seen  and 
handled  for  seventy  years,  and  always  the  same  thing  :  Sover 
eignty,  and  Proprietorship,  and  a  right  to  make  rules  and  regu 
lations  respecting  the  territory  of  the  United  States.  Between 
the  weight  of  reasons,  impalpable  and  invisible  on  one  side,  and 
those  which  have  been  seen  and  felt,  and  by  all  beholders  for 
two  generations,  on  the  other,  there  is  no  rule  of  comparison 

*  "  It  appears,  however,  from  what  has  taken  place  at  the  bar,  that  notwithstand 
ing  the  language  of  the  Constitution,  and  the  long  line  of  legislative  and  executive  pre 
cedents  under  it,  three  different  and  opposite  views  are  taken  of  the  power  of  Congress 
respecting  slavery  in  the  Territories. 

"  One  is,  that  though  Congress  can  make  a  regulation  prohibiting  slavery  in  a 
Territory,  they  cannot  make  a  regulation  allowing  it ;  another  is,  that  it  can  neither 
he  established  nor  prohibited  by  Congress,  but  that  the  people  of  the  Territory,  when 
organized  by  Congress,  can  establish  or  prohibit  slavery ;  while  the  third  is,  that  the 
Constitution  itself  secures  to  every  citizen  who  holds  slaves,  under  the  laws  of  any 
State,  the  indefeasible  right  to  carry  them  into  any  Territory,  and  there  hold  them  as 
property. 

"  No  particular  clause  of  the  Constitution  has  been  referred  to  at  the  bar  in  sup 
port  of  either  of  these  views.  The  first  seems  to  be  rested  upon  general  considera 
tions  concerning  the  social  and  moral  evils  of  slavery,  its  relation  to  republican 
Governments,  its  inconsistency  with  the  Declaration  of  Independence,  and  with 
natural  right. 

"  The  second  is  drawn  from  considerations  equally  general,  concerning  the  right 
of  self-government,  and  the  nature  of  the  political  institutions  which  have  been  estab 
lished  by  the  people  of  the  United  States. 

"  While  the  third  is  said  to  rest  upon  the  equal  right  of  all  citizens  to  go  with  their 
property  upon  the  public  domain ;  and  the  inequality  of  a  regulation  which  would 
admit  the  property  of  some  and  exclude  the  property  of  other  citizens ;  and,  inas 
much  as  slaves  are  chiefly  held  by  citizens  of  those  particular  States  where  slavery  is 
established,  it  is  insisted  that  a  regulation  excluding  slavery  from  a  Territory  operates, 
practically,  to  make  an  unjust  discrimination  between  citizens  of  different  States,  in 
respect  to  their  use  and  enjoyment  of  the  territory  of  the  United  States." — Mr.  Justice 
Curtis. 


128 


EXAMINATION   OF   THE 


winch  can  reach  the  case ;  and  the  task  of  comparing  them 
must  be  given  up. 

So  that  the  decisions  of  the  Court  tried  by  all  the  tests  of 
comparison — numbers  on  each  side,  qualifications  for  right  de 
cision,  tranquillity  of  times,  freedom  from  party;  jurisdiction, 
unanimity,  precedents,  antiquity,  and  weight  of  reason — sink 
out  of  view  in  the  presence  of  the  old,  established,  invariable, 
and  venerable  practice  of  our  ancestors. 

One  further  remark  will  conclude  this  conclusion.  The 
Court  dwells  upon  the  supposed  unconstitutionality  of  any 
regulation  which  would  prevent  a  master  from  taking  his  slaves 
with  him  to  a  Territory.  Why,  the  master  himself  may  be 
prevented  from  going,  or  turned  out  after  he  gets  there.  From 
the  day  of  becoming  a  landholder,  the  old  Continental  Congress 
first,  and  the  Federal  Congress  since,  have  exercised  the  right  of 
every  other  landholder  to  prevent  trespasses,  intrusions,  and 
settlements  upon  their  territory,  expelling  with  military  force, 
and  punishing  with  fine  and  damages,  the  violator  of  its  rules. 
This  began  under  the  Confederation,  and  has  continued  ever 
since/*'  All  the  old  settlers  on  the  frontiers  can  remember  the 
dragooning  the  settlers  on  the  United  States  territory,  driving 
them  off,  and  destroying  their  houses  and  growing  crops.  All 
can  remember  the  old  familiar  operation  of  cutting  up  a  Terri 
tory,  running  a  line  through  it,  giving  one  half  to  the  Indians, 
and  driving  the  white  people  from  it,  and  their  slaves  also.f 

*  Resolved,  That  tlie  Secretary  at  War,  to  whom  was  referred  the  letter  from 
Major  Wyllis,  of  the  16th  instant,  direct  the  commanding  officer  of  the  troops  of  the 
United  States  on  the  Ohio,  to  take  immediate  and  efficient  measures  for  dispossessing 
a  body  of  men  who  have,  in  a  lawless  and  unauthorized  manner,  taken  possession  of 
port  St.  Vincent's  (Vincenues),  in  defiance  of  the  proclamation  and  authority  of  the 
United  States,  and  that  he  employ  the  whole,  or  such  part  of  the  force  under  his  com 
mand,  as  he  shall  judge  necessary  to  accomplish  the  object. — Journal  of  the  old  Con 
gress,  1787. 

f  The  last  instance  of  this  kind,  and  a  strong  one  it  was,  was  in  the  year  1828, 
when  the  organized  Territory  of  Arkansas  was  amputated ;  a  slip  40  miles  wide  and 
300  long,  with  its  counties  and  settlements,  was  cut  off  and  transferred  to  the  Cherokee 
Indians,  and  the  inhabitants,  with  their  herds,  and  flocks,  and  slaves,  were  driven  from 
their  homes.  The  boundaries  of  the  Territory  had  been  fixed  by  Congress  in  1824: ; 
the  Indian  title  had  been  extinguished ;  it  was  open  to  settlement,  laid  off  into  counties, 
and  Courts  held  in  them  by  judges  appointed  by  the  United  States.  Yet  by  a  treaty 
with  the  Cherokees,  it  was  agreed  to  give  up  these  12,000  square  miles  to  the  Chero- 
kees,  and  "  to  remove  all  white  persons,  and  also  all  others,  from  the  west  of  said  line, 


.    ETC.  129 

Such  is  the  power  which  Congress  exercises  over  its  territory, 
and  with  which  the  Constitution  has  nothing  to  do. 

To  sum  up,  in  a  few  words,  the  results  of  this  Examination, 
and  to  present  the  conclusions  under  a  single  view,  and  it  is 
shown  that  the  Constitution  was  not  made  for  Territories,  and 
does  not  include  them — that  it  cannot  be  extended  to  them  by 
law,  and  if  it  could,  would  be  barren  and  fruitless  without  law 
to  put  it  into  operation — that  no  law  could  be  made  under  it  to 
give  any  help  to  the  slaveholder,  either  in  recovering  his  pro 
perty,  if  the  slave  ran  away,  or  in  bringing  back  for  justice  the 
fugitive  felon  that  should  steal  it;  or  in  getting  protection  from 
the  Federal  Government  against  revolt,  or  in  that  acknowledg 
ment  of  property  in  the  slave  which  results  from  his  federal 
taxation.  In  no  one  of  these  cases,  nor  in  any  other  one  which 
can  be  imagined,  can  any  law  be  made  under  the  Constitution 
to  help  the  slave-owner,  for  every  provision  in  that  instrument 
which  relates  to  slavery  is  confined  to  States ;  and  the  owner 
must  be  thrown  upon  the  ordinance  of  1787,  and  the  power  of 
Congress,  independent  of  the  Constitution,  for  every  species  of 
protection  which  he  may  need  about  that  property. 

I  have  performed  an  unpleasant  task,  but  unavoidable.  I 
have  been  on  the  kindest  personal  terms  with  the  judges,  and 
in  my  long  senatorial  service,  and  as  part  of  the  appointing 
power,  have  cordially  given  my  voice  for  the  elevation  of  each 
of  them  to  the  honorable  stations  they  hold — for  every  one  ex 
cept  Mr.  Justice  Curtis,  appointed  since  the  termination  of  my 
service.  I  am  a  friend  to  the  Supreme  Court  as  an  institution — 
as  a  high  and  essential  part  of  our  system — and  would  not  will 
ingly  derogate  from  its  respect,  or  impair  its  utility.  But  the 
whole  system,  of  which  it  is  a  part,  and  the  whole  people,  of 
whom  its  members  are  a  few,  are  overruling  considerations; 
and  the  evil  of  the  late  decision  being  actually  upon  us,  going 


and  keep  them  away."  And  this  treaty,  against  an  urgent  opposition,  was  ratified  by 
Southern  votes,  and  carried  into  effect  by  Southern  votes  in  the  House  of  Representatives, 
to  the  almost  ruin  of  the  State  of  Arkansas,  reducing  her  to  a  state  of  the  middle  or 
small  class,  when,  from  her  frontier  position,  national  policy  required  her  to  be  strong 
and  powerful,  with  which  view  her  boundaries  were  fixed  in  1824.  The  people  were 
driven  off,  and  Congress  afterwards  made  them  indemnity  in  other  land,  but  that  came 
from  the  bounty  of  Congress,  and  was  no  contract  with  the  people  who  were  driven 
off,  as  any  proprietor  might  drive  people  from  his  land. 

9 


130       EXAMINATION   OF  THE   SUPEEME   COUKT's   DECISION,    ETC. 

into  parties,*  entering  into  elections,  giving  the  rule  for  the  ap 
pointment  of  all  future  federal  judges,  establishing  a  new  party 
test,  bringing  the  federal  judiciary  into  the  vortex  of  federal 
politics,  and  developing  still  more  strongly  the  geographical  line 
which  divides  us ;  seeing  all  these  evils  now  upon  us,  and  others 
to  come,  I  have  found  it  impossible  to  remain  silent,  or  to  have 
said  less.  I  am  among  the  last  of  those  who,  acting  with  the 
generations  that  are  passed,  still  adhere  to  their  teachings.  I 
labor  to  preserve  what  they  established,  lamenting  that  the  task 
had  not  fallen  into  abler  hands.  A  few  years  earlier,  and  the 
preservation  of  the  Missouri  Compromise  would  have  found  its 
adequate  defender  in  one  of  its  greatest  architects,  and  the  in 
tegrity  of  the  Constitution  would  have  found  its  champion  in 
its  great  expounder ;  but  Clay  and  Webster  are  gone  ;  and,  before 
them,  went  Pinkney  and  Lowndes,  gloriously  identified  with  the 
work  which  recent  hands  have  just  torn  down.  And  of  those 
who  survive,  and  who  stood  by  them  in  their  great  efforts,  and 
still  stand  where  they  stood,  I  am  one  of  the  few — no  longer  in 
power,  but  still  in  armor  when  the  works  of  our  fathers  are  in 
danger.  I  write  for  no  party,  but  for  all  men  who  venerate  the 
works  of  our  ancestors,  and  who  wish  to  see  our  Government 
kept  on  the  foundations  on  which  they  placed  it. 

*  So  entirely  has  it  gone  into  parties,  that  it  is  often  a  question  (along  the  borders 
of  the  free  and  slave  line)  of  profit,  or  loss,  to  adopt  or  denounce  it.  In  one  case,  on 
the  north  side  of  the  line,  which  I  noted,  the  convention  found  itself  in  a  state  of  im 
possibility  from  the  inability  to  determine  on  which  side  the  loss  or  gain  would  be. 
One  delegate  proposed  its  adoption,  because  it  would  give  them  strength  to  the  South ; 
another  objected  that  they  would  lose  more  in  the  North  than  they  would  gain  in  the 
South.  And  opinions  being  about  equally  balanced,  the  upshot  was,  that  the  decision 
was  neither  adopted  nor  condemned ! 


APPENDIX. 
I. 

PROPOSED  EXTENSION  OF  THE  CONSTITUTION  OF  THE  UNITED  STATES  TO 
THE  TERRITORIES,  WITH  A  YIEW  TO  MAKE  IT  CARRY  SLAVERY  INTO  CALI 
FORNIA,  UTAH,  AND  NEW  MEXICO. 

(From  the  Thirty  Years'  View :  Vol.  II.,  Chap.  182.) 

THE  treaty  of  peace  with  Mexico  had  been  ratified  in  the  session 
of  1847-'4:8,  and  all  the  ceded  Territory  became  subject  to  our 
Government,  and  needing  the  immediate  establishment  of  terri 
torial  governments  :  but  such  were  the  distractions  of  the  slavery 
question,  that  no  such  governments  could  be  formed,  nor  any  law 
of  the  United  States  extended  to  these  newly  acquired  and  or 
phan  dominions.  Congress  sat  for  six  months  after  the  treaty 
had  been  ratified,  making  vain  efforts  to  provide  governments 
for  the  new  Territories,  and  adjourning  without  accomplishing 
the  work.  Another  session  had  commenced,  and  was  coming 
to  a  close  with  the  same  fruitless  result.  Bills  had  been  intro 
duced,  but  they  only  gave  rise  to  heated  discussion.  In  the  last 
days  of  the  session,  the  civil  and  diplomatic  appropriation  bill, 
commonly  called  the  general  appropriation  bill — the  one  which 
provides  annually  for  the  support  of  the  Government,  and  with 
out  the  passage  of  which  the  Government  would  stop,  came  up 
from  the  House  to  the  Senate.  It  had  received  its  considera 
tion  in  the  Senate,  and  was  ready  to  be  returned  to  the  House, 
when  Mr.  "Walker,  of  Wisconsin,  moved  to  attach  to  it,  under 
the  name  of  amendment,  a  section  providing  a  temporary  govern 
ment  for  the  ceded  Territories,  and  extending  an  enumerated 
list  of  acts  of  Congress  to  them.  It  was  an  unparliamentary 
and  disorderly  proposition,  the  proposed  amendment  being  in 
congruous  to  the  matter  of  the  appropriation  bill,  and  in  plain 
violation  of  the  obvious  principle  which  forbade  extraneous 
matter,  and  especially  that  which  was  vehemently  contested, 


132  APPENDIX. 

from  going  into  a  bill  upon  the  passage  of  which  the  existence 
of  the  Government  depended.  The  proposition  met  no  favor  ; 
it  would  have  died  out  if  the  mover  had  not  yielded  to  a  south 
ern  solicitation  to  insert  the  extension  of  the  Constitution  into 
his  amendment,  so  as  to  extend  that  fundamental  law  to  those 
for  whom  it  was  never  made,  and  where  it  was  inapplicable, 
and  impracticable.  The  novelty  and  strangeness  of  the  propo 
sition  called  up  Mr.  Webster,  who  said  :— 

"  It  is  of  importance  that  we  should  seek  to  have  clear  ideas  and 
correct  notions  of  the  question  which  this  amendment  of  the  member 
from  Wisconsin  has  presented  to  us  ;  and  especially  that  we  should  seek 
to  get  some  conception  of  what  is  meant  by  the  proposition,  in  a  law,  to 
'  extend  the  Constitution  of  the  United  States  to  the  Territories.'  Why, 
sir,  the  thing  is  utterly  impossible.  All  the  legislation  in  the  world,  in 
this  general  form,  could  not  accomplish  it.  There  is  no  cause  for  the 
operation  of  the  legislative  power  in  such  a  manner  as  that.  The  Con 
stitution — what  is  it  ?  We  extend  the  Constitution  of  the  United  States 
by  law  to  Territory  !  What  is  the  Constitution  of  the  United  States  ? 
Is  not  its  very  first  principle,  that  all  within  its  influence  and  compre 
hension  shall  be  represented  in  the  legislature  which  it  establishes,  with 
not  only  a  right  of  debate  and  a  right  to  vote  in  both  Houses  of  Con 
gress,  but  a  right  to  partake  in  the  choice  of  the  President  and  Vice 
President  ?  And  can  we  by  law  extend  these  rights,  or  any  of  them,  to 
a  Territory  of  the  United  States  ?  Every  body  will  see  that  it  is  alto 
gether  impracticable.  It  comes  to  this,  then,  that  the  Constitution  is 
to  be  extended  as  far  as  practicable  ;  but  how  far  that  is,  is  to  be  decided 
by  the  President  of  the  United  States,  and  therefore  he  is  to  have  abso 
lute  and  despotic  power.  He  is  the  judge  of  what  is  suitable,  and  what 
is  unsuitable ;  and  what  he  thinks  suitable  is  suitable,  and  what  he 
thinks  unsuitable  is  unsuitable.  He  is  '  omnis  in  hoc ; '  and  what  is 
this  but  to  say,  in  general  terms,  that  the  President  of  the  United  States 
shall  govern  this  Territory  as  he  sees  fit  till  Congress  makes  further 
provision.  Now,  if  the  gentleman  will  be  kind  enough  to  tell  me  what 
principle  of  the  Constitution  he  supposes  suitable,  what  discrimination 
he  can  draw  between  suitable  and  unsuitable  which  he  proposes  to  fol 
low,  I  shall  be  instructed.  Let  me  say,  that  in  this  general  sense  there 
is  no  such  thing  as  extending  the  Constitution.  The  Constitution  is 
extended  over  the  United  States,  and  over  nothing  else.  It  cannot  be 
extended  over  any  thing  except  over  the  old  States  and  the  new  States 
that  shall  come  in  hereafter,  when  they  do  come  in.  There  is  a  want 
of  accuracy  of  ideas  in  this  respect  that  is  quite  remarkable  among 


APPENDIX.  133 

eminent  gentlemen,  and  especially  professional  and  judicial  gentlemen. 
It  seems  to  be  taken  for  granted  that  the  right  of  trial  by  jury,  the 
habeas  corpus,  and  every  principle  designed  to  protect  personal  liberty, 
is  extended  by  force  of  the  Constitution  itself  over  every  new  Territory. 
That  proposition  cannot  be  maintained  at  all.  How  do  you  arrive  at 
it  by  any  reasoning  or  deduction  ?  It  can  be  only  arrived  at  by  the 
loosest  of  all  possible  constructions.  It  is  said  that  this  must  be  so, 
else  the  right  of  the  habeas  corpus  would  be  lost.  Undoubtedly  these 
rights  must  be  conferred  by  law,  before  they  can  be  enjoyed  in  a  Ter 
ritory." 

It  was  not  Mr.  Walker,  of  Wisconsin,  the  mover  of  the  propo 
sition,  that  replied  to  Mr.  Webster  :  it  was  the  prompter  of  the 
measure  that  did  it,  and  in  a  way  to  show  immediately  that  this 
extension  of  the  Constitution  to  Territories  was  nothing  but  a 
new  scheme  for  the  extension  of  slavery.  Denying  the  power 
of  Congress  to  legislate  upon  slavery  in  Territories — finding 
slavery  actually  excluded  from  the  ceded  Territories,  and  desir 
ous  to  get  it  there — Mr.  Calhoun,  the  real  author  of  Mr.  Walk 
er's  amendment,  took  the  new  conception  of  carrying  the  Con 
stitution  into  them ;  which  arriving  there,  and  recognizing 
slavery,  and  being  the  supreme  law  of  the  land,  it  would  over 
ride  the  anti-slavery  laws  of  the  Territory,  and  plant  the  insti 
tution  of  slavery  under  its  ^Egis,  and  above  the  reach  of  any 
territorial  law,  or  law  of  Congress  to  abolish  it.  He,  therefore, 
came  to  the  defence  of  his  own  proposition,  and  thus  replied  to 
Mr.  Webster  :— 

"  I  rise,  not  to  detain  the  Senate  to  any  considerable  extent,  but  to 
make  a  few  remarks  upon  the  proposition  first  advanced  by  the  Senator 
from  New  Jersey,  fully  endorsed  by  the  Senator  from  New  Hampshire, 
and  partly  endorsed  by  the  Senator  from  Massachusetts,  that  the  Con 
stitution  of  the  United  States  does  not  extend  to  the  Territories.  That 
is  the  point.  I  am  very  happy,  sir,  to  hear  this  proposition  thus  asserted, 
for  it  will  have  the  effect  of  narrowing  very  greatly  the  controversy  be 
tween  the  North  and  the  South  as  it  regards  the  slavery  question  in  con 
nection  with  the  Territories.  It  is  an  implied  admission  on  the  part  of 
those  gentlemen,  that,  if  the  Constitution  does  extend  to  the  Territories, 
the  South  will  be  protected  in  the  enjoyment  of  its  property — that  it 
will  be  under  the  shield  of  the  Constitution.  You  can  put  no  other  in 
terpretation  upon  the  proposition  which  the  gentlemen  have  made,  than 
that  the  Constitution  does  not  extend  to  the  Territories.  Then  the 


134:  APPENDIX. 

simple  question  is,  does  the  Constitution  extend  to  the  Territories,  or 
does  it  not  extend  to  them  ?  Why,  the  Constitution  interprets  itself. 
It  pronounces  itself  to  be  the  supreme  law  of  the  land." 

When  Mr.  Webster  heard  this  syllogistic  assertion,  that  the 
Constitution  being  the  supreme  law  of  the  land,  and  the  Terri 
tories  being  a  part  of  the  land,  ergo  the  Constitution  being  ex 
tended  to  them  would  be  their  supreme  law :  when  he  heard 
this,  he  called  out  from  his  seat — "  What  land  f"  Mr.  Calhoun 
replied,  saying : — 

"  The  land ;  the  Territories  of  the  United  States  are  a  part  of  the 
land.  It  is  the  supreme  law,  not  within  the  limits  of  the  States  of  this 
Union  merely,  but  wherever  our  flag  waves — wherever  our  authority 
goes,  the  Constitution  in  part  goes,  not  all  its  provisions  certainly,  but 
all  its  suitable  provisions.  Why,  can  we  have  any  authority  beyond  the 
Constitution  ?  I  put  the  question  solemnly  to  gentlemen ;  if  the  Con 
stitution  does  not  go  there,  how  are  we  to  have  any  authority  or  juris 
diction  whatever  ?  Is  not  Congress  the  creature  of  the  Constitution  ; 
does  it  not  hold  its  existence  upon  the  tenure  of  the  continuance  of  the 
Constitution ;  and  would  it  not  be  annihilated  upon  the  destruction  of 
that  instrument,  and  the  consequent  dissolution  of  this  confederacy  ? 
And  shall  we,  the  creature  of  the  Constitution,  pretend  that  we  have 
any  authority  beyond  the  reach  of  the  Constitution  ?  Sir,  we  were  told, 
a  few  days  since,  that  the  courts  of  the  United  States  had  made  a  decision 
that  the  Constitution  did  not  extend  to  the  Territories  without  an  act 
of  Congress.  I  confess  that  I  was  incredulous,  and  am  still  incredulous 
that  any  tribunal,  pretending  to  have  a  knowledge  of  our  system  of  gov 
ernment,  as  the  courts  of  the  United  States  ought  to  have,  could  have 
pronounced  such  a  monstrous  judgment.  I  am  inclined  to  think  that  it 
is  an  error  which  has  been  unjustly  attributed  to  them ;  but  if  they 
have  made  such  a  decision  as  that,  I  for  one  say,  that  it  ought  not  and 
never  can  be  respected.  The  Territories  belong  to  us ;  they  are  ours ; 
that  is  to  say,  they  are  the  property  of  the  thirty  States  of  the  Union ; 
and  we,  as  the  representatives  of  those  thirty  States,  have  the  right 
to  exercise  all  that  authority  and  jurisdiction  which  ownership  carries 
with  it." 

Mr.  Webster  replied,  with  showing  that  the  Constitution  was 
made  for  States,  not  Territories — that  no  part  of  it  went  to  a 
Territory  unless  specifically  extended  to  it  by  act  of  Congress — 
that  the  Territories  from  first  to  last  were  governed  as  Congress 


APPENDIX.  135 

chose  to  govern  them,  independently  of  the  Constitution,  and 
often  contrary  to  it,  as  in  denying  them  representatives  in  Con 
gress,  a  vote  for  President  and  Vice  President,  the  protection 
of  the  Supreme  Court : — that  Congress  was  constantly  doing 
things  in  the  Territories  without  constitutional  objection  (as 
making  mere  local  roads  and  bridges),  which  could  not  be  at 
tempted  in  a  State.  He  argued  :— 

"  The  Constitution,  as  the  gentleman  contends,  extends  over  the 
Territories.  How  does  it  get  there  ?  I  am  surprised  to  hear  a  gentle 
man  so  distinguished  as  a  strict  constructionist,  affirming  that  the  Con 
stitution  of  the  United  States  extends  to  the  Territories,  without  showing 
us  any  clause  in  the  Constitution  in  any  way  leading  to  that  result ;  and 
to  hear  the  gentleman  maintaining  that  position  without  showing  us  any 
way  in  which  such  a  result  could  be  inferred,  increases  my  surprise. 

"  One  idea  further  upon  this  branch  of  the  subject.  The  Constitu 
tion  of  the  United  States  extending  over  the  Territories,  and  no  other 
law  existing  there  !  Why,  I  beg  to  know  how  any  government  could 
proceed,  without  any  other  authority  existing  there  than  such  as  is 
created  by  the  Constitution  of  the  United  States  ?  Does  the  Constitu 
tion  of  the  United  States  settle  titles  to  land  ?  Does  it  regulate  the 
rights  of  property  ?  Does  it  fix  the  relations  of  parent  and  child,  guar 
dian  and  ward  ?  The  Constitution  of  the  United  States  establishes  what 
the  gentleman  calls  a  confederation  for  certain  great  purposes,  leaving  all 
the  great  mass  of  laws  which  is  to  govern  society  to  derive  their  exist 
ence  from  State  enactments.  That  is  the  just  view  of  the  state  of  things 
under  the  Constitution.  And  a  State  or  Territory  that  has  no  law  but 
such  as  it  derives  from  the  Constitution  of  the  United  States,  must  be 
entirely  without  any  State  or  territorial  government.  The  honorable 
Senator  from  South  Carolina,  conversant  with  the  subject  as  he  must  be, 
from  his  long  experience  in  different  branches  of  the  Government,  must 
know  that  the  Congress  of  the  United  States  have  established  principles 
in  regard  to  the  Territories  that  are  utterly  repugnant  to  the  Constitu 
tion.  The  Constitution  of  the  United  States  has  provided  for  them  an 
independent  judiciary  ;  for  the  judge  of  every  court  of  the  United  States 
holds  his  office  upon  the  tenure  of  good  behavior.  Will  the  gentleman 
say  that  in  any  court  established  in  the  Territories,  the  judge  holds  his 
office  in  that  way  ?  He  holds  it  for  a  term  of  years,  and  is  removable 
at  Executive  discretion.  How  did  we  govern  Louisiana  before  it  was  a 
State  ?  Did  the  writ  of  habeas  corpus  exist  in  Louisiana  during  its 
territorial  existence  ?  Or  the  right  to  trial  by  jury  ?  Who  ever  heard 
of  trial  by  jury  there  before  the  law  creating  the  territorial  government 


136  APPENDIX. 

gave  the  right  to  trial  by  jury  ?  No  one.  And  I  do  not  believe  that 
there  is  any  new  light  now  to  be  thrown  upon  the  history  of  the  pro 
ceedings  of  this  Government  in  relation  to  that  matter.  When  new  ter 
ritory  has  been  acquired  it  has  always  been  subject  to  the  laws  of  Con 
gress — to  such  laws  as  Congress  thought  proper  to  pass  for  its  immediate 
government ;  for  its  government  during  its  territorial  existence,  during 
the  preparatory  state  in  which  it  was  to  remain  until  it  was  ready  to 
come  into  the  Union  as  one  of  the  family  of  States." 

All  tins  was  sound  constitutional  law ;  or,  rather,  was  vera 
cious  history,  showing  that  Congress  governed  as  it  pleased  in 
the  Territories,  independently  of  the  Constitution,  and  often  con 
trary  to  it ;  and  consequently,  that  the  Constitution  did  not 
extend  to  it.  Mr.  Webster  then  showed  the  puerility  of  the 
idea  that  the  Constitution  went  over  the  Territories  because  they 
were  " land"  and  exposed  the  fallacy  of  the  supposition  that 
the  Constitution,  even  if  extended  to  a  Territory,  could  operate 
there  of  itself,  and  without  a  law  of  Congress  made  under  it. 
This  fallacy  was  exposed  by  showing  that  Mr.  Calhoun,  in 
quoting  the  Constitution  as  the  supreme  law  of  the  land,  had 
omitted  the  essential  words  which  were  part  of  the  same  clause, 
and  which  couples  with  that  supremacy  the  laws  of  Congress 
made  in  pursuance  of  the  Constitution.  Thus  :— 

"  The  honorable  Senator  from  South  Carolina  argues  that  the  Con 
stitution  declares  itself  to  be  the  law  of  the  land,  and  that,  therefore,  it 
must  extend  over  the  Territories.  '  The  land,'  I  take  it,  means  the  land 
over  which  the  Constitution  is  established,  or,  in  other  words,  it  means 
the  States  united  under  the  Constitution.  But  does  not  the  gentleman 
see  at  once  that  the  argument  would  prove  a  great  deal  too  much  ? 
The  Constitution  no  more  says  that  the  Constitution  itself  shall  be  the 
supreme  law  of  the  land,  than  it  says  that  the  laws  of  Congress  shall  be 
the  supreme  law  of  the  land.  It  declares  that  the  Constitution  and  the 
law  of  Congress  passed  under  it  shall  be  the  supreme  law  of  the  land." 

The  question  took  a  regular  slavery  turn,  Mr.  Calhoun  avow 
ing  his  intent  to  be  to  carry  slavery  into  the  Territories  under 
the  wing  of  the  Constitution,  and  openly  treated  as  enemies  to 
the  South  all  that  opposed  it.  Having  taken  the  turn  of  a 
slavery  question,  it  gave  rise  to  all  the  dissension  of  which  that 
subject  had  become  the  parent  since  the  year  1835.  By  a  close 
vote,  and  before  the  object  had  been  understood  by  all  the  Sena- 


APPENDIX.  137 

tors,  the  amendment  was  agreed  to  in  the  Senate,  but  imme 
diately  disagreed  to  in  the  House,  and  a  contest  brought  on 
between  the  two  Houses  by  which  the  great  appropriation  bill, 
on  which  the  existence  of  the  Government  depended,  was  not 
passed  until  after  the  constitutional  expiration  of  the  Congress 
at  midnight  of  the  third  of  March,  and  was  signed  by  Mr.  Polk 
(after  he  had  ceased  to  be  President)  on  the  4th  of  March — the 
law  and  his  approval  being  antedated  of  the  3d,  to  prevent  its 
invalidity  from  appearing  on  the  face  of  the  act.  Great  was  the 
heat  which  manifested  itself,  and  imminent  the  danger  that 
Congress  would  break  up  without  passing  the  general  appro 
priation  bill ;  and  that  the  Government  would  stop  until  a  new 
Congress  could  be  assembled — many  of  the  members  of  which 
remained  still  to  be  elected.  Many  members  refused  to  vote 
after  midnight — which  it  then  was.  Mr.  Cass  said  : — • 

"  As  I  am  among  those  who  believe  that  the  term  of  this  session  has 
expired,  and  that  it  is  incompetent  for  us  now  to  do  business,  I  cannot 
vote  upon  any  motion.  I  have  sat  here  as  a  mere  looker  on.  I  merely 
desire  to  explain  why  I  took  no  part  in  the  proceedings." 

Mr.  Yulee,  of  Florida,  moving  an  adjournment,  said  : — 

"  I  should  be  very  sorry,  indeed,  to  make  any  proposition  which  may 
in  any  degree  run  counter  to  the  general  sentiment  of  the  Senate ;  but 
I  feel  bound,  laboring  under  the  strong  conviction  that  I  do,  to  arrest 
at  every  step,  and  by  every  means,  any  recorded  judgment  of  the  Senate 
at  a  time  when  we  are  not  legally  engaged  in  the  discharge  of  our  sena 
torial  duties.  I  agree  entirely  in  the  view  taken  by  the  Senator  from 
Michigan." 

Mr.  Turney,  of  Tennessee,  said  : — 

"  I  am  one  of  those  who  believe  that  we  have  no  right  to  sit  here. 
The  time  has  expired ;  one-third  of  this  body  are  not  present  at  all,  and 
the  others  have  no  right  to  sit  here  as  a  part  of  Congress.  But  a  mo 
tion  has  been  made  for  adjournment,  and  the  presiding  officer  has  refused 
to  entertain  that  motion.  This  being  the  case,  I  must  regard  all  that 
is  done  as  done  in  violation  of  the  Constitution,  or  rather  not  in  pur 
suance  of  it.  It  appears  to  me  that  we  sit  here  more  in  the  character 
of  a  town  meeting  than  as  the  Senate  of  the  United  States,  and  that 
what  we  do  is  no  more  binding  on  the  American  people  than  if  we  did 


138  APPENDIX. 

it  at  a  town  meeting.  I  snail  express  no  opinion  by  saying  yea  or  nay 
on  the  question  before  the  Senate.  At  the  same  time,  I  protest  against 
it,  as  being  no  part  of  the  constitutional  proceedings  of  the  Senate  of 
the  United  States." 

Mr.  Benton,  and  many  others,  declined  to  vote.  The  House 
of  Kepresentatives  had  ceased  to  act,  and  sent  to  the  Senate  the 
customary  message  of  adjournment.  The  President,  who,  ac 
cording  to  the  usage,  had  remained  in  the  Capitol  till  midnight 
to  sign  bills,  had  gone  home.  It  was  four  o'clock  in  the  morn 
ing  of  the  fourth,  and  the  greatest  confusion  and  disorder  pre 
vailed.  Finally  Mr.  Webster  succeeded  in  getting  a  vote,  by 
which  the  Senate  receded  from  the  amendment  it  had  adopted, 
extending  the  Constitution  to  the  Territories ;  and  that  reces 
sion  leaving  the  appropriation  bill  free  from  the  encumbrance 
of  the  slavery  question,  it  was  immediately  passed. 

This  attempt,  pushed  to  the  verge  of  breaking  up  the  Gov 
ernment  in  pursuit  of  a  newly  invented  slavery  dogma,  was 
founded  in  errors  too  gross  for  misapprehension.  In  the  first 
place,  as  fully  shown  by  Mr.  Webster,  the  Constitution  was  not 
made  for  Territories,  but  for  States.  In  the  second  place,  it 
cannot  operate  any  where,  not  even  in  the  States  for  which  it 
was  made,  without  acts  of  Congress  to  enforce  it.  This  is  true 
of  the  Constitution  in  every  particular.  Every  part  of  it  is  in 
operative  until  put  into  action  by  a  statute  of  Congress.  The 
Constitution  allows  the  President  a  salary ;  he  cannot  touch  a 
dollar  of  it  without  an  act  of  Congress.  It  allows  the  recovery 
of  fugitive  slaves :  you  cannot  recover  one  without  an  act  of 
Congress.  And  so  of  every  clause  it  contains.  The  proposed 
extension  of  the  Constitution  to  Territories,  with  a  view  to  its 
transportation  of  slavery  along  with  it,  was  then  futile  and  nu 
gatory,  until  an  act  of  Congress  should  be  passed  to  vitalize 
slavery  under  it.  So  that,  if  the  extension  had  been  declared 
by  law,  it  would  have  answered  no  purpose  except  to  widen  the 
field  of  the  slavery  agitation — to  establish  a  new  point  of  con 
tention — to  give  a  new  phase  to  the  embittered  contest — and  to 
alienate  more  and  more  from  each  other  the  two  halves  of  the 
Union.  But  the  extension  was  not  declared.  Congress  did  not 
.extend  the  Constitution  to  the  Territories.  The  proposal  was 
rejected  in  both  Houses  ;  and  immediately  the  crowning  dogma 


APPENDIX.  139 

is  invented,  that  the  Constitution  goes  of  itself  to  the  Territories 
without  an  act  of  Congress,  and  executes  itself,  so  far  as  slavery 
is  concerned,  not  only  without  legislative  aid,  but  in  defiance 
of  Congress  and  the  people  of  the  Territory.  This  is  the  last 
slavery  creed  of  the  Calhoun  school,  and  the  one  on  which  his 
disciples  now  stand — and  not  with  any  barren  foot.  They  ap 
ply  the  doctrine  to  existing  Territories,  and  make  acquisitions 
from  Mexico  for  new  applications.  It  is  impossible  to  consider 
such  conduct  as  any  thing  else  than  as  one  of  the  devices  for 
"forcing  the  issue  with  the  Nwtli"  which  Mr.  Calhoun  in  his 
confidential  letter  to  the  member  of  the  Alabama  Legislature 
avows  to  have  been  his  policy  since  1835,  and  which  he  avers 
he  would  then  have  effected,  if  the  members  from  the  slave 
States  had  stood  by  him. 


ii. 


THE   SLAVERY   AGITATION:    DISUNION:    KEY   TO    ME.    CALHOUN'S    POLICY: 

FORCING   THE   ISSUE:    MODE   OF   FOECING   IT. 

(From  the  Thirty  Years1  View :  Vol.  II.,  Chap.  168.) 

IN  the  course  of  this  year  (1847),  and.  some  months  after  the 
submission  of  his  resolutions  in  the  Senate  denying  the  right  of 
Congress  to  abolish  slavery  in  a  Territory,  Mr.  Calhoun  wrote 
a  letter  to  a  member  of  the  Alabama  Legislature,  which  furnishes 
the  key  to  unlock  his  whole  system  of  policy  in  relation  to  the 
slavery  agitation,  and  its  designs,  from  his  first  taking  up  the 
business  in  Congress,  in  the  year  1835,  down  to  the  date  of  the 
letter ;  and  thereafter.  The  letter  was  in  reply  to  one  asking 
his  opinion  "  as  to  the  steps  which  should  be  taken "  to  guard 
the  rights  of  the  South  ;  and  was  written  in  a  feeling  of  personal 
confidence  to  a  person  in  a  condition  to  take  steps  ;  and  which 
he  has  since  published  to  counteract  the  belief  that  Mr.  Calhoun 
was  seeking  the  dissolution  of  the  Union.  The  letter  disavows 
such  a  design,  and  at  the  same  time  proves  it — recommends 
forcing  the  issue  between  the  North,  and  the  South,  and  lays 
down  the  manner  in  which  it  should  be  done.  It  opens  with 
this  paragraph : — 

"  I  am  much  gratified  with  the  tone  and  views  of  your  letter,  and 


140  APPENDIX. 

concur  entirely  in  the  opinion  you  express,  that  instead  of  shunning,  we 
ought  to  court  the  issue  with  the  North  on  the  slavery  question.  I 
would  even  go  one  step  further,  and  add  that  it  is  our  duty — due  to 
ourselves,  to  the  Union,  and  our  political  institutions,  to  force  the  issue 
on  the  North.  "VVe  are  now  stronger  relatively  than  we  shall  be  here 
after,  politically  and  morally.  Unless  we  bring  on  the  issue,  delay  to 
us  will  be  dangerous  indeed.  It  is  the  true  policy  of  those  enemies  who 
seek  our  destruction.  Its  effects  are,  and  have  been,  and  will  be  to 
weaken  us  politically  and  morally,  and  to  strengthen  them.  Such  has 
been  my  opinion  from  the  first.  Had  the  South,  or  even  my  own  State 
backed  me,  I  would  have  forced  the  issue  on  the  North  in  1835,  when 
the  spirit  of  abolitionism  first  developed  itself  to  any  considerable  extent. 
It  is  a  true  maxim,  to  meet  danger  on  the  frontier,  in  politics  as  well  as 
war.  Thus  thinking,  I  am  of  the  impression,  that  if  the  South  act  as  it 
ought,  the  Wilmot  Proviso,  instead  of  proving  to  be  the  means  of  suc 
cessfully  assailing  us  and  our  peculiar  institution,  may  be  made  the 
occasion  of  successfully  asserting  our  equality  and  rights,  by  enabling  us 
to  force  the  issue  on  the  North.  Something  of  the  kind  was  indispen 
sable  to  rouse  and  unite  the  South.  On  the  contrary,  if  we  should  not 
meet  it  as  we  ought,  I  fear,  greatly  fear,  our  doom  will  be  fixed.  It 
would  prove  that  we  either  have  not  the  sense  or  spirit  to  defend  our 
selves  and  our  institutions." 

The  phrase  "  forcing  the  issue  "  is  here  used  too  often,  and 
for  a  purpose  too  obvious,  to  need  remark.  The  reference  to 
his  movement  in  1835  confirms  all  that  was  said  of  that  move 
ment  at  the  time  by  Senators  from  both  sections  of  the  Union, 
and  which  has  been  related  in  chapter  131,  vol.  i.,  of  the  Thirty 
Years  Yiew.  At  that  time  Mr.  Calhoun  characterized  his 
movement  as  defensive — as  done  in  a  spirit  of  self-defence  :  it 
was  then  characterized  by  Senators  as  aggressive  and  offensive  : 
and  it  is  now  declared  in  this  letter  to  have  been  so.  lie  was 
then  openly  told  that  he  was  playing  into  the  hands  of  the 
abolitionists,  and  giving  them  a  champion  to  contend  with,  and 
the  elevated  theatre  of  the  American  Senate  for  the  dissemina 
tion  of  their  doctrines,  and  the  production  of  agitation  and  sec 
tional  division.  All  that  is  now  admitted,  with  a  lamentation 
that  the  South,  and  not  even  his  own  State,  would  stand  by  him 
then  in  forcing  the  issue.  So  that  chance  was  lost.  Another 
was  now  presented.  The  Wilmot  Proviso,  so  much  deprecated 
in  public,  is  privately  saluted  as  a  fortunate  event,  giving  an 
other  chance  for  forcing  the  issue.  The  letter  proceeds  : — 


APPENDIX.  141 

"  But  in  making  up  the  issue,  we  must  look  far  beyond  the  proviso. 
It  is  but  one  of  many  acts  of  aggression,  and,  in  my  opinion,  by  no  means 
the  most  dangerous  or  degrading,  though  more  striking  and  palpable." 

In  looking  beyond  the  proviso  Mr.  Calhoun  took  up  the  re 
cent  act  of  the  General  Assembly  of  Pennsylvania,  repealing 
the  slave  sojournment  law  within  her  limits,  and  obstructing 
the  recovery  of  fugitive  slaves,  saying  : — 

"  I  regard  the  recent  act  of  Pennsylvania,  and  laws  of  that  descrip 
tion,  passed  by  other  States,  intended  to  prevent  or  embarrass  the 
reclamation  of  fugitive  slaves,  or  to  liberate  our  domestics  when  travel 
ling  with  them  in  non-slaveholding  States,  as  unconstitutional.  Insulting 
as  it  is,  it  is  even  more  dangerous.  I  go  further,  and  hold  that  if  we 
have  a  right  to  hold  our  slaves,  we  have  a  right  to  hold  them  in  peace 
and  quiet,  and  that  the  toleration,  in  the  non-slaveholding  States,  of  the 
establishment  of  societies  and  presses,  and  the  delivery  of  lectures,  with 
the  express  intention  of  calling  in  question  our  right  to  our  slaves,  and 
of  seducing  and  abducting  them  from  the  service  of  their  masters,  and 
finally  overthrowing  the  institution  itself,  is  not  only  a  violation  of  in 
ternational  laws,  but  also  of  the  Federal  compact.  I  hold,  also,  that 
we  cannot  acquiesce  in  such  wrongs,  without  the  certain  destruction  of 
the  relation  of  master  and  slave,  and  without  the  ruin  of  the  South." 

Hie  acts  of  Pennsylvania  here  referred  to  are  justly  com 
plained  of,  but  with  the  omission  to  tell  that  these  injurious  acts 
were  the  fruit  of  his  own  agitation  policy,  and  in  his  own  line 
of  forcing  issues  ;  and  that  the  repeal  of  the  sojournment  law, 
which  had  subsisted  since  the  year  1780,  and  the  obstruction  of 
the  fugitive  slave  act,  which  had  been  enforced  since  1793,  only 
took  place  twelve  years  after  he  had  commenced  slavery  agita 
tion  in  the  South,  and  were  legitimate  consequences  of  that 
agitation,  and  of  the  design  to  force  the  issue  with  the  North. 
Ttie  next  sentence  of  the  letter  reverts  to  the  "Wilmot  Proviso, 
and  is  of  momentous  consequence  as  showing  that  Mr.  Calhoun, 
with  all  his  public  professions  in  favor  of  compromise  and  con 
ciliation,  was  secretly  opposed  to  any  compromise  or  adjust 
ment,  and  actually  considered  the  defeat  of  the  proviso  as  a  mis 
fortune  to  the  South.  Thus  : — 

"  With  this  impression,  I  would  regard  any  compromise  or  adjust- 


142  APPENDIX. 

ment  of  the  proviso,  or  even  its  defeat,  without  meeting  the  danger  in 
its  whole  length  and  breadth,  as  very  unfortunate  for  us.  It  would  lull 
us  to  sleep  again,  without  removing  the  danger,  or  materially  diminish 
ing  it." 

So  that,  while  this  proviso  was,  publicly,  the  Pandora's  box 
which  filled  the  Union  with  evil,  and  while  it  was  to  Mr.  Cal- 
houn  and  his  friends  the  theme  of  endless  deprecation,  it  was 
secretly  cherished  as  a  means  of  keeping  up  discord,  and  forcing 
the  issue  between  the  North  and  the  South.  Mr.  Calhoun  then 
proceeds  to  the  serious  question  of  disunion,  and  of  the  manner 
in  which  the  issue  could  be  forced. 

"  This  brings  up  the  question,  how  can  it  be  so  met,  without  resort 
ing  to  the  dissolution  of  the  Union  ?  I  say  without  its  dissolution,  for 
in  my  opinion,  a  high  and  sacred  regard  for  the  Constitution,  as  well  as 
the  dictates  of  wisdom,  make  it  our  duty  in  this  case,  as  well  as  all  others, 
not  to  resort  to,  or  even  to  look  to  that  extreme  remedy,  until  all  others 
have  failed,  and  then  only  in  defence  of  our  liberty  and  safety.  There 
is,  in  my  opinion,  but  one  way  in  which  it  can  be  met ;  and  that  is  the 

one  indicated  in  my  letter  to  Mr. ,  and  to  which  you  allude  in 

yours  to  me,  viz.,  by  retaliation.  Why  I  think  so,  I  shall  now  proceed 
to  explain." 

Then  follows  an  argument  to  justify  retaliation,  by  represent 
ing  the  Constitution  as  containing  provisions,  he  calls  them 
stipulations,  some  in  favor  of  the  slaveholding,  and  some  in 
favor  of  the  non-slaveholding  States,  and  the  breach  of  any  of 
which,  on  one  side,  authorizes  a  retaliation  on  the  other ;  and 
then  declaring  that  Pennsylvania  and  other  States  have  violated 
the  provision  in  favor  of  the  slave  States  in  obstructing  the  re 
covery  of  fugitive  slaves,  he  proceeds  to  explain  his  remedy, 
saying : — 

"  There  is  and  can  be  but  one  remedy  short  of  disunion,  and  that  is 
to  retaliate  on  our  part,  by  refusing  to  fulfil  the  stipulations  in  their 
favor,  or  such  as  we  may  select,  as  the  most  efficient.  Among  these,  the 
right  of  their  ships  and  commerce  to  enter  and  depart  from  our  ports  is 
the  most  effectual,  and  can  be  enforced.  That  the  refusal  on  their  part 
would  justify  us  to  refuse  to  fulfil  on  our  part  those  in  their  favor,  is 
too  clear  to  admit  of  argument.  That  it  would  be  effectual  in  compelling 
them  to  fulfil  those  in  our  favor  can  hardly  be  doubted,  when  the  iin- 


APPENDIX.  143 

mense  profit  they  make  by  trade  and  navigation  out  of  us  is  regarded ; 
and  also  the  advantages  we  would  derive  from  the  direct  trade  it  would 
establish  between  the  rest  of  the  world  and  our  ports." 

Retaliation  by  closing  the  ports  of  the  State  against  the 
commerce  of  the  offending  State  :  arid  this  called  a  constitu 
tional  remedy,  and  a  remedy  short  of  disunion.  It  is,  on  the 
contrary,  a  flagrant  breach  of  the  Constitution,  and  disunion  it 
self,  and  that  at  the  very  point  which  caused  the  Union  to  be 
formed.  Every  one  acquainted  with  the  history  of  the  formation 
of  the  Federal  Constitution,  knows  that  it  grew  out  of  the  single 
question  of  commerce — the  necessity  of  its  regulation  between 
the  States  to  prevent  them  from  harassing  each  other,  and  with 
foreign  nations  to  prevent  State  rivalries  for  foreign  trade.  To 
stop  the  trade  with  any  State  is,  therefore,  to  break  the  Union 
with  that  State  ;  and  to  give  any  advantage  to  a  foreign  nation 
over  a  State,  would  be  to  break  the  Constitution  again  in  the 
fundamental  article  of  its  formation  ;  and  this  is  what  the  retali 
atory  remedy  of  commercial  non-intercourse  arrives  at — a  double 
breach  of  the  Constitution — one  to  the  prejudice  of  sister  States, 
the  other  in  favor  of  foreign  nations.  For  immediately  upon 
this  retaliation  upon  a  State,  and  as  a  consequence  of  it,  a  great 
foreign  trade  is  to  grow  up  with  all  the  world.  The  letter  pro 
ceeds  with  further  instructions  upon  the  manner  of  executing 
the  retaliation : — 

"  My  impression  is,  that  it  should  be  restricted  to  sea-going  vessels, 
which  would  leave  open  the  trade  of  the  valley  of  the  Mississippi  to 
New  Orleans  by  river,  and  to  the  other  Southern  cities  by  railroad ; 
and  tend  thereby  to  detach  the  North-western  from  the  North-eastern 
States." 

This  discloses  a  further  feature  in  the  plan  of  forcing  the 
issue.  The  North-eastern  States  were  to  be  excluded  from 
Southern  maritime  commerce :  the  North-western  States  were 
to  be  admitted  to  it  by  railroad,  and  also  allowed  to  reach  New 
Orleans  by  the  Mississippi  River.  And  this  discrimination  in 
favor  of  the  North-western  States  was  for  the  purpose  of  detach 
ing  them  from  the  North-east.  Detach  is  the  word.  And  that 
word  signifies  to  separate,  disengage,  disunite,  part  from :  so 
that  the  scheme  of  disunion  contemplated  the  inclusion  of  the 
North-western  States  in  the  Southern  division.  The  State  of 


APPENDIX. 

Missouri  was  one  of  the  principal  of  these  States,  and  great 
efforts  were  made  to  gain  her  over,  and  to  beat  down  Senator 
Benton  who  was  an  obstacle  to  that  design.  The  letter  concludes 
by  pointing  out  the  only  difficulty  in  the  execution  of  this  plan, 
and  showing  how  to  surmount  it. 

"  There  is  but  one  practical  difficulty  in  the  way ;  and  that  is,  to 
give  it  force,  it  will  require  the  co-operation  of  all  the  slaveholding 
States  lying  on  the  Atlantic  Gulf.  Without  that,  it  would  be  ineffective. 
To  get  that  is  the  great  point,  and  for  that  purpose  a  convention  of  the 
Southern  States  is  indispensable.  Let  that  be  called,  and  let  it  adopt 
measures  to  bring  about  the  co-operation,  and  I  would  underwrite  for 
the  rest.  The  non-slaveholding  States  would  be  compelled  to  observe 
the  stipulations  of  the  Constitution  in  our  favor,  or  abandon  their  trade 
with  us,  or  to  take  measures  to  coerce  us,  which  would  throw  on  them 
the  responsibility  of  dissolving  the  Union.  Which  they  would  choose, 
I  do  not  think  doubtful.  Their  unbounded  avarice  would,  in  the  end, 
control  them.  Let  a  convention  be  called — let  it  recommend  to  the 
slaveholding  States  to  take  the  course  advised,  giving,  say  one  year's 
notice,  before  the  acts  of  the  several  States  should  go  into  effect,  and 
the  issue  would  fairly  be  made  up,  and  our  safety  and  triumph  certain." 

This  is  the  only  difficulty — the  want  of  a  co-operation  of  all 
the  Southern  Atlantic  States  :  and  to  surmount  that,  the  indis- 
pensability  of  a  convention  of  the  Southern  States  is  fully  de 
clared.  This  was  going  back  to  the  starting  point — to  the  year 
1835 — when  Mr.  Calhoun  first  took  up  the  slavery  agitation  in 
the  Senate,  and  when  a  convention  of  the  slaveholding  States 
was  as  much  demanded  then  as  now,  and  that  twelve  years  be 
fore  the  Wilmot  Proviso— twelve  years  before  the  Pennsylvania 
unfriendly  legislation — twelve  years  before  the  insult  and  out 
rage  to  the  South,  in  not  permitting  them  to  carry  their  local 
laws  with  them  to  the  Territories,  for  the  protection  of  their 
slave  property.  A  call  of  a  Southern  convention  was  as  much 
demanded  then  as  now  ;  and  such  conventions  often  actually 
attained  ;  but  without  accomplishing  the  object  of  the  prime 
mover.  No  step  could  be  got  to  be  taken  in  those  conventions 
towards  dividing  and  sectionalizing  the  States,  and  after  a  vain 
reliance  upon  them  for  seventeen  years,  a  new  method  has  been 
fallen  upon  :  and  this  confidential  letter  from  Mr.  Calhoun  to  a 
member  of  the  Alabama  Legislature  of  1S±7,  has  come  to  light, 


APPENDIX.  145 

to  furnish  the  key  which  unlocks  his  whole  system  of  slavery 
agitation  which  he  commenced  in  the  year  1835.  That  system 
was  to  force  issues  upon  the  North  under  the  pretext  of  self- 
defence,  and  to  sectionalize  the  South,  preparatory  to  disunion, 
through  the  instrumentality  of  sectional  conventions,  composed 
wholly  of  delegates  from  the  slaveholding  States.  Failing  in 
that  scheme  of  accomplishing  the  purpose,  a  new  one  was  fallen 
upon,  which  will  disclose  itself  in  its  proper  place. 


in. 

EEVIEW  OF  PRESIDENT  PIEECE'S  ANNUAL  MESSAGE  TO  CONGEESS,  OF  DE 
CEMBER,  1856,  SO  FAE  AS  THE  SAME  RELATES  TO  THE  ABROGATION  OF 
THE  MISSOURI  COMPROMISE  ACT:  WITH  A  VIEW  TO  EXPOSE  AND  CORRECT 
ITS  ERRORS  OF  FACT  AND  OF  LAW. 

I  ENTER  upon  this  task  with  the  declaration  that  I  believe  this 
part  of  the  message  to  have  been  written  by  Mr.  Pierce's  law 
officer,  (Mr.  Caleb  Gushing,)  dominated  by  his  Secretary  at 
"War,  (Mr.  Jefferson  Davis,)  and  that  Mr.  Pierce  is  not  obnoxious 
to  the  strictures  I  am  forced  to  make,  and  is  only  culpable  in 
covering  with  his  name  the  fallacious  statements  of  others. 
And  with  this  salvo  in  behalf  of  an  innocent  man,  I  proceed  to 
the  review  of  the  message,  first  presenting  a  specimen  of  the 
epithets  which  are  lavished  upon  the  act,  (and  by  consequence 
on  its  authors,)  the  abrogation  of  which  is  the  subject  of  so 
much  laudation  and  joy.  "A  mere  nullity,"  "unconstitu 
tional,"  "  no  obligatory  force,"  "  an  imperfection  on  the  statute 
book,"  "  objectionable  enactment,"  "  a  monument  of  error," 
"  a  beacon  of  warning."  "  a  dead  letter  in  law,"  "  injurious," 
"  conferring  no  right,"  "  taking  away  no  right,"  "  affecting  no 
sense  of  permission  or  prohibition,"  "  a  nullity  permitted  to  re 
main  for  some  years  on  the  statute  book,"  "  no  moral  force," 
"  its  repeal  a  matter  of  form,  being  dead  of  itself,"  "  the  statute 
book  rightfully  relieved  by  its  repeal  of  an  unconstitutional, 
injurious,  objectionable  enactment :"  such  are  the  terms  (a 
sample  of  the  quality  and  a  fraction  of  the  quantity)  which  the 
message  piles  up  on  this  healing  and  pacifying  measure  of  1820, 
as  if  it  was  intended  by  a  mere  accumulation  of  odious  epithets 
to  "  crush  out "  an  act  which  was  balm  to  the  wounds  of  the 
10 


146  APPENDIX. 

country  at  the  time  of  its  enactment,  arid  peace  and  safety  to  a 
distracted  Union,  for  nearly  thirty  years  afterwards.  And  to 
whom  do  these  epithets  apply  ?  To  the  twenty-four  senators, 
headed  hy  Pinkney,  of  Maryland,  the  jurist  and  orator,  and  to 
the  one  hundred  and  thirty-four  representatives,  headed  by 
Clay  and  Lowndes,  and  to  the  administration  of  Mr.  Monroe,  to 
whom  the  country  was  indebted  for  that  beneficent  act.  To 
these  men  these  epithets  apply.  These  are  the  men  stigmatized 
in  the  message  as  dolts  and  ninnies,  foolish,  if  not  wicked,  and 
barely  escaping  the  imputation  of  criminality  in  consideration 
of  their  ignorance  and  folly.  But  the  stigmatizing  does  not  stop 
there :  it  reaches  back  to  Washington,  to  his  cabinet,  and  the 
entire  Congress  of  1789  :  for  Washington  and  that  Congress,  in 
adopting  the  ordinance  of  '87,  adopted  that  slavery  clause, 
which,  being  copied  into  the  Missouri  act,  has  given  rise  to  all 
this  vituperation  of  this  measure,  and  to  all  this  exultation  over 
its  repeal.  Nor  does  the  obloquy  stop  there,  but  reaches  the 
President,  the  cabinet,  and  the  Congress  of  1845,  all  of  whom, 
re-enacting  the  Missouri  Compromise,  become  subject  to  the 
obloquy  which  the  message  lavishes  upon  that  measure.  All 
these,  and  the  whole  body  of  the  American  people,  who  ac 
cepted  the  act,  come  in  for  their  share  of  these  fine  epithets : 
but  there  is  certainly  one  who  ought  to  have  been  excepted, 
one,  who  being  twice  the  supporter  of  the  vituperated  act,  (in 
Mr.  Monroe's  cabinet  and  Tyler's  cabinet,)  ought  to  have  es 
caped  denunciation,  and  who,  although  he  had  forgotten  that 
support  in  1848,  could  not  make  Mr.  Monroe's  letter  forget  it ; 
nor  Mr.  Adams's  diary  forget  it ;  nor  the  index  to  the  papers 
filed  in  the  department  of  State  forget  it ;  nor  make  his  own 
speech  of  1838  forget  it.  This  gentleman  ought  to  have  been 
excepted,  both  as  the  supporter  of  the  Missouri  Compromise  in 
1820,  and  of  its  re-enactment  in  1845;  and  as  the  favorite  states 
man  of  the  party  which  the  message  represents.  And  now  to 
the  review. 

It  is  a  law  of  Providence,  from  which  there  are  but  few  de 
viations,  and  of  which  the  abrogation  of  the  Missouri  Compro 
mise  has  given  occasion  for  the  largest  modern  illustration,  that 
those  who  commit  a  great  wrong  are  condemned,  during  the 
remainder  of  their  lives,  to  the  painful  task  of  inventing  excuses 
and  justifications  for  the  delinquent  act.  So  in  this  case  ;  since 


APPENDIX.  147 

the  month  of  May,  1854,  when  this  deed  was  done,  its  authors 
have  been  in  a  permanent  state  of  excuse  and  justification  ;  and 
being  many,  and  in  possession  of  the  Government,  and  with 
the  control  of  many  newspapers,  and  the  right  of  composing 
official  papers  and  public  documents,  they  have  plied  the  public 
mind  with  incessant  repetition  of  these  justificatory  pieces,  each 
an  improvement  upon  its  predecessor  in  all  the  qualities  which 
the  defence  of  so  bad  a  cause  requires ;  undaunted  mendacity, 
moral  callosity,  mental  obliquity,  Old  Bailey  attorney  perver 
sions  of  law  and  evidence.  The  last  annual  message  of  Mr. 
Pierce  was  the  last  opportunity  for  this  defensive  pleading,  and 
being  the  last,  it  was  carefully  seized  on,  and  vigorously  im 
proved  to  the  best  advantage.  The  message  was  big  with  it. 
It  was  a  large  plea,  and  a  bold  one,  and  conspicuously  presented. 
In  quantity  it  filled  eleven  octavo  pages,  (leaving  but  seventeen 
for  all  the  appropriate  subjects  which  belong  to  that  official 
paper  ;)  in  boldness,  it  inaugurated  a  new  era  in  our  Presidential 
messages — the  era  of  historical  falsification  in  those  high  papers, 
heretofore  considered  the  sacred  receptacle  of  veracious  history  ; 
in  conspicuity,  being  thrust  into  the  front  of  the  message,  in 
stead  of  being  relegated  to  its  fag-end,  where  such  low  matter 
should  go,  if,  indeed,  allowed  to  enter  a  message  at  all ;  which 
it  never  was  before.  Veracious  history  must  rebuke  this  first 
attempt  to  make  the  Presidential  annual  message  a  vehicle  of 
historical  falsification ;  and  the  work  is  easily  done,  all  the  facts' 
necessary  to  the  correction  of  the  fallacious  statements  being  of 
record  in  the  debates  and  journals  of  Congress,  and  other  au 
thentic  public  evidence.  These  misstatements,  after  a  prelimi 
nary  one  to  usher  in  the  others,  arrange  themselves  under  three 
heads :  first,  in  what  relates  to  the  formation  of  the  Missouri 
Compromise ;  secondly,  in  what  relates  to  its  abrogation ; 
thirdly,  in  what  relates  to  the  present  state  of  parties,  and  their 
respective  shares  in  producing  the  present  agitation. 

This  preliminary  misstatement  is  the  assumption,that  the  issue 
of  the  last  Presidential  election  was  a  national  ratification  of  the 
abrogation  of  the  Missouri  Compromise.  No  assumption  could  be 
more  unfounded.  That  election  proved  just  the  reverse  of  what 
has  been  assumed.  It  was  intended  that  it  should  be  so,  (in  the 
nomination  and  election  of  some  one  of  the  prominent  destroyers 
of  the  compromise,)  and  the  Convention  at  Cincinnati  was 


148  APPENDIX. 

gorged  with  office-holding  retainers  of  the  administration  for 
that  purpose :  but  no  such  destroyer  of  the  compromise  could 
be  nominated;  and  no  one  of  them  could  have  been  elected  if 
nominated.  It  was  the  trump  argument  in  favor  of  Mr.  Bu 
chanan,  that  he  was  not  one  of  these  destroyers ;  and,  although 
known  to  "  acquiesce  "  in  the  deed  after  it  was  done,  yet  his 
long  and  most  conspicuous  championship  of  that  measure,  and 
his  geographical  position,  led  to  the  belief  that  he  would  not 
improve  upon  its  abrogation,  nor  complete  its  iniquities  by 
lending  himself  to  the  ulterior  designs  of  its  authors.  That 
belief,  and  the  discredit  brought  upon  his  opponent  by  the 
support  of  some  violent  men,  (and  it  is  the  violent  always  who 
impress  character  upon  a  party,)  who  preached  against  the  ex 
istence  of  slavery  in  the  States — against  the  admission  of  any 
more  slave  States — and  against  the  compromises  of  the  Consti 
tution  and  of  the  ordinance  of  '87,  for  the  surrender  of  fugitive 
slaves :  it  was  this  belief,  and  this  discredit,  which  turned  the 
scales  in  the  election ;  and  it  required  all  that  both  these  cardinal 
causes  could  do  to  elect  Mr.  Buchanan.  This  is  public,  unde 
niable  truth;  and  it  requires  a  courageous  and  veteran  disregard 
of  the  laws  of  veracity  to  assume  the  contrary,  as  the  message 
is  made  to  do. 

And  now  for  the  enactment  of  the  Missouri  Compromise, 
which  the  message  very  properly  styles  "a  political  enact 
ment,"  as  it  certainly  is ;  and  then  gives  this  account  of  it  :— 

"  The  enactment,  which  established  the  restrictive  geographical  line, 
was  acquiesced  in  rather  than  approved  by  the  States  of  the  Union.  It 
stood  on  the  Statute  Book,  however,  for  a  number  of  years ;  and  the 
people  of  the  respective  States  acquiesced  in  the  re-enactment  of  the 
principle  as  applied  to  the  State  of  Texas ;  and  it  was  proposed  to  ac 
quiesce  in  its  further  application  to  the  territory  acquired  by  the  United 
States  from  Mexico.  But  this  proposition  was  successfully  resisted  by  the 
representatives  from  the  Northern  States,  who,  regardless  of  the  statute 
line,  insisted  upon  applying  restriction  to  the  new  territory  generally, 
whether  lying  north  or  south  of  it,  thereby  repealing  it  as  a  legislative 
compromise,  and,  on  the  part  of  the  North,  persistently  violating  the 
compact,  if  compact  there  was.  Thereupon  this  enactment  ceased  to 
have  binding  virtue  in  any  sense,  whether  as  respects  the  North  or  the 
South ;  and  so  in  effect  it  was  treated  on  the  occasion  of  the  admission 
of  the  State  of  California,  and  the  organization  of  the  Territories  of  New 
Mexico,  Utah,  and  Washington." 


APPENDIX.  149 

This  paragraph  is  characteristic,  ana  exemplifies  all  the 
modes  of  conveying  untruths  which  long  ages  have  invented : 
direct  assertion,  fallacious  inference,  equivocal  phrase,  and  false 
inuendo.  The  word  "  restrictive  "  has  no  application  to  the 
Compromise  Act.  It  applied  exclusively  to  the  State  of  Mis 
souri,  and  the  attempt  to  restrain  her,  as  a  State,  from  the  ad 
mission  of  slaves.  The  compromise,  was  a  territorial  measure, 
applying  exclusively  to  territory,  and  establishing,  not  a  re 
strictive,  but  a  partition  line  ;  a  line  of  territorial  division,  upon 
the  principle  of  the  division  of  the  South-west  and  North- west 
Territory  by  the  old  Congress  in  1787,  and  sanctioned  by  the 
new  Congress  in  1789.  The  principle  of  each  was  the  same, 
and  the  dividing  line  so  nearly  the  same,  that  the  Louisiana  line 
may  stand  for  a  continuation  of  the  north-west  line,  making 
about  equal  division,  until  the  South  gave  away  nearly  the 
whole  of  hers.  A  compromise  is  agreed  to  ;  a  restriction  is  im 
posed  ;  and  it  is  falsifying  the  character  of  the  act  of  1820  to 
call  it  restrictive.  The  power  of  each  House  of  Congress  agreed 
to  it ;  the  negative  in  each  was  inconsiderable. 

Then  comes  a  litter  of  unfounded  suggestions,  implied  in 
the  word  "  acquiesce,"  three  times  repeated  in  six  lines,  and 
every  time  pregnant  with  a  fallacious  implication — each  more 
glaring  than  the  other.  It  is  the  lawyer-like  way  of  saying 
what  Mr.  Calhoun  said  pointedly,  that  the  Missouri  Compromise 
was  imposed  upon  the  South  by  the  North,  and  only  acquiesced 
in  because  too  weak  to  relieve  herself.  For  it  is  as  notorious 
as  that  the  South  exists,  that  both  these  compromises — that  by 
which  Missouri  and  Arkansas  became  admitted  as  slave  States, 
and  that  of  1845  by  which  Texas  (and  four  more  slave  States  to  be 
made  out  of  her  territory)  became  admitted — were  measures  of  the 
South,  carried  by  her  votes,  and  the  votes  of  her  friends  in  the 
free  States ;  and  that,  in  each  case,  she  was  so  determined  upon 
the  measure  as  to  threaten  secession  from  the  Union  if  it  was 
not  obtained.  This  is  matter  of  public  history  ;  and  therefore, 
the  mendacity  of  these  three  implications,  in  six  lines,  becomes 
too  flagrant  to  admit  of  comment, or  to  require  proof.  We  pro 
ceed  to  another,  the  Southern  proposal  to  extend  the  Missouri 
Compromise  line  to  the  Pacific,  or,  in  the  language  of  the 
message,  "to  acquiesce"  in  the  extension;  and  its  defeat  by 
Northern  votes.  In  the  first  place,  that  extension  was  resisted 


150  APPENDIX. 

by  others  as  well  as  by  Northern  votes — resisted  by  all  Southern 
men  opposed  to  planting  slavery  in  new  places — and  vehemently 
by  Mr.  Clay,  who  repulsed  the  proposition  indignantly  when 
pushed  at  him  by  Mr.  Davis  of  Mississippi,  declaring,  with  an 
emphasis  which  electrified  the  Senate,  that  no  power  on  earth 
should  ever  make  him  vote  for  slavery  in  any  place  where  it 
did  not  already  exist.  For  that  was  the  nature  of  the  vote  in 
volved  in  this  insidiously  proposed  extension — being  directly 
the  reverse  of  voting  for  the  same  line  in  the  ancient  Louisiana. 
Astronomically,  the  lines  were  the  same  :  politically,  they  were 
opposite  :  one  running  through  territory  all  slave,  and  making 
one-half  free  ;  the  other  running  through  territory  all  free,  and 
making  one-half  slave.  Call  this  extended  line  the  same  !  You 

o 

had  as  well  call  black  and  white  the  same.  And  this,  in  fact, 
is  what  the  message  is  made  to  do,  with  a  reproach  to  all 
Northern  men  who  would  not  agree  to  spread  slavery  over  the 
broad  expanse  of  all  that  half  of  California,  New  Mexico  and 
Utah,  which  lies  south  of  36°  30' ;  and  it  is  for  not  agreeing  to 
convert  this  great  extent  of  old  free  soil  into  new  slave  soil,  that 
these  Northern  representatives  are  thus  chid  and  reproached  in 
the  message.  Certainly,  Mr.  Gushing  would  not  so  have  re 
buked  them  in  the  year  1836,  when  he  was  opposing  the  admis 
sion  of  Arkansas  as  a  slave  State  ;  *  or,  in  the  year  1838,  when, 
with  Mr.  Slade,  of  Vermont,  and  with  all  the  abolitionists  in  the 


*  The  extraordinary  circumstances  under  which  I  rise  to  address  the  Committee, 
impel  me  to  brevity  and  succinctness ;  but  they  would  afford  me  no  justification  for  a 
passive  acquiescence  in  the  admission  of  Arkansas  into  the  Union,  with  all  the  sins  of 
its  constitution  upon  its  head.  The  constitution  of  Arkansas  contains  a  provision, 
forbidding  the  legislature  to  emancipate  slaves  without  the  consent  of  the  owner,  and 
forbidding  it  to  pass  any  law  to  prevent  slaveholders  with  their  slaves  from  emigrating 
to  the  State.  This  provision  of  the  constitution  of  Arkansas  is  condemned  by  those  I 
represent  as  anti-republican,  as  wrong  on  general  principles  of  civil  polity,  and  as 
unjust  to  the  inhabitants  of  the  non-slaveholding  States.  I  concur  in  reprobating 
such  a  clause.  I  cannot,  by  any  vote  of  mine,  ratify  or  sanction  a  constitution  of 
government  which  undertakes  in  this  way  to  foreclose  in  advance  the  progress  of 
civilization  and  of  liberty  for  ever.  The  gentleman  from  Virginia  (Mr.  Wise),  who  I 
cheerfully  admit  is  always  frank  and  honorable  in  his  course  upon  this  floor,  has  just 
declared  that,  as  a  Southern  man,  he  had  felt  it  to  be  his  duty  to  come  forward  and 
take  a  stand  in  behalf  of  an  institution  of  the  South.  That  institution  is  slavery.  In 
like  manner  I  feel  it  to  be  my  duty,  as  a  Northern  man,  to  take  a  counter  stand  in 
conservation  of  one  among  the  dearest  of  the  institulions  of  the  North.  This  institution 
is  liberty." — Mr.  Gushing* s  Speech  against  the  admission  of  Arkansas. 


APPENDIX.  151 

House  of  Representatives,  by  his  efforts  to  abolish  slavery  in 
the  District  of  Columbia,  he  drove  the  Southern  members  to 
secession  from  the  floor  of  the  House,  to  consult  in  a  committee 
room  in  the  basement  of  the  Capitol,  upon  the  decisive  step  of 
returning  to  their  constituents.  * 

Then  comes  the  fundamental  falsehood  which  lies  at  the 
foundation  of  the  attack  on  the  Missouri  Compromise,  affirming 
that  it  had  been  virtually  repealed  by  the  negative  action  of 
Congress  in  1850,  in  refusing  to  extend  the  compromise  line  to 
the  Pacific,  and  in  refusing  to  legislate  upon  slavery  in  Califor 
nia,  New  Mexico,  Utah  and  Washington — Washington,  as  the 
message  says  ;  though  there  was  no  Territory  of  Washington  at 
that  time,  and  the  territory  which  afterwards  composed  it,  had 
been  included  in  the  legislation  on  Oregon,  of  which  it  was  a 
part ;  and  from  which  that  institution  was  excluded.  But,  take 
the  statement  as  it  stands,  and  judge  it  upon  its  words  ;  and  for 
that  purpose  it  must  be  given  in  its  own  words  :  for  nothing  but 
itself  ca»  do  justice  to  itself  in  the  exhibition  of  such  legerde 
main  in  handling  law  and  facts.  And  here  it  is : — 

"  But  this  proposition  was  successfully  resisted  by  the  represen 
tatives  from  the  Northern  States,  who,  regardless  of  the  statute  line, 
insisted  upon  applying  restriction  to  the  new  territory  generally,  whether 
lying  north  or  south  of  it,  thereby  repealing  it  as  a  legislative  compro 
mise,  and,  on  the  part  of  the  North,  persistently  violating  the  compact, 
if  compact  there  was.  Thereupon  this  enactment  ceased  to  have  bind 
ing  virtue  in  any  sense,  whether  as  respects  the  North  or  the  South ; 
•and  so  in  effect  it  was  treated  on  the  occasion  of  the  admission  of  the 
State  of  California,  and  the  organization  of  the  Territories  of  New 
Mexico,  Utah  and  Washington." 

Here  is  a  farrago  of  law  and  fact  for  you — a  sample  of  asser 
tion  and  inference — which  ignores  truth,  reason,  common  sense, 
and  law  logic.  A  refusal  to  extend  a  line  is,  to  repeal  it :  a 
refusal  to  act  upon  slavery  in  Territories  where  it  was  already 

*  Of  the  sixty-three  members  of  the  House  who  pertinaciously  hacked  Mr.  Slade 
during  the  two  days  that  the  struggle  continued,  one  was  Mr.  Caleb  Gushing,  then  as 
zealous  to  abolish  slavery  in  the  District  of  Columbia  (for  the  motion  was  to  instruct 
a  committee  to  bring  in  a  peremptory  bill  for  that  purpose)  as  he  has  since  shown 
himself  active  to  abolish  all  impediments  to  the  general  territorial  diffusion  of  slavery — 
even  in  the  old  free  territory,  once  a  part  of  the  empire  of  Montezuma. 


152  APPENDIX. 

abolished  by  Mexican  law  is,  to  violate  the  Missouri  Compact — 
if  there  was  one.  The  admission  of  the  State  of  California  with 
her  free  constitution,  and  the  organization  of  the  Territories  of 
Utah  and  JSTew  Mexico,  without  excluding  slavery  where  it  was 
already  excluded,  was,  in  effect,  to  deprive  the  Missouri  Com 
promise  of  binding  virtue  in  any  sense ;  and,  consequently,  to 
authorize  the  Congress  of  1854  to  rub  it  out  of  the  statute  book 
as  being  a  dead  thing,  put  to  death  by  the  Congress  of  1850. 
Happily  for  the  inventors  of  all  this  false  assertion  and  prepos 
terous  inference,  Mr.  Clay  was  dead  before  they  found  out  that 
he  had,  in  his  compromise  measures  of  1850,  destroyed  the 
Missouri  Compromise  of  1820.  He  was  not  the  man  to  hear 
such  a  libel  upon  himself  without  instantly  blasting,  with  his 
indignant  invective,  both  the  foul  imputation,  and  its  luckless 
author.  But  no  one  of  these  destroyers  of  that  compromise 
was  so  unlucky  as  to  subject  himself  to  the  lightning  of  that 
reply.  They  had  too  much  discretion  for  that.  They  waited 
four  years  for  him  to  be  dead,  and  buried,  before  the  foul  im 
putation  was  cast  upon  him  :  an  imputation  sufficient  to  start 
his  spirit  from  the  grave.  I  was  a  member  of  that  Congress  of 
1850,  and  saw  what  was  done :  I  was  a  close  observer  of  his 
compromise  measures,  and  know  what  they  were  :  I  have  ex 
amined  them  all  since,  and  find  that  I  was  not  mistaken  in  my 
recollection  of  them.  And  upon  all  this  knowledge,  and  upon 
the  measures  themselves  as  they  now  stand  on  the  statute  book, 
I  take  upon  myself  to  affirm,  that  the  assertion  that  the}-  re 
pealed,  or  impaired  in  any  way,  the  Missouri  Compromise  Act, 
is  one  of  the  most  unfounded  assertions  which  ever  fell  from 
the  lips  of  man. 

\  The  assertion  is,  that  the  compromise  measures  of  1850 
repealed  the  Missouri  Compromise,  and  established  the  doctrine 
of  non-interference  with  slavery  in  Territories.  This  repeal,  it 
has  been  seen,  was  effected  by  refusing  to  extend  the  line  to 
the  Pacific  Ocean — certainly  a  new  way  of  repealing  a  statute  ! 
and  the  non-interference  will  be  found  to  be  worthy  to  take  its 
place  by  the  side  of  such  an  invention.  Certain  it  is  that  Con 
gress  did  not  legislate  upon  slavery  in  any  Territory  in  1850  ; 
but  why  ?  precisely  because  there  was  no  room  for  legislation  ! 
because  the  question  was  then  settled,  by  law,  in  every  inch 
square  of  territory  belonging  to  the  United  States!  and  settled 


APPENDIX.  153 

to  the  satisfaction  of  Congress,  and  as  it  was  intended  to  remain 
for  ever,  and  to  be,  what  was  then  called,  "  a  finality  !  "  It 
was  settled  every  where  ;  in  the  remnant  of  the  old  North-west 
Territory,  by  the  ordinance  of  '87,  re-enacted  by  the  act  of 
Congress  of  1789 ;  in  all  the  Territory  of  Louisiana,  by  the 
Missouri  Compromise  line ;  in  Oregon,  by  her  own  organic 
act,  and  by  the  act  of  her  organization,  extending  the  ordinance 
of  '87  to  her ;  in  California,  by  her  State  constitution  ;  in  Utah 
and  New  Mexico,  by  the  laws  of  Mexico,  abolishing  slavery 
there  before  their  cession  to  the  United  States ;  in  Texas,  by  the 
terms  of  her  admission,  allowing  her  to  come  in  with  her  slave 
constitution,  and  the  right  to  form  four  more  slave  States  out  of 
her  territory.  This  closed  up  the  question  every  where.  It 
left  not  one  inch  square  of  territory  in  the  United  States  open 
to  the  slavery  question.  There  was  no  way  to  get  at  the  question, 
then,  but  by  breaking  down  a  law  ;  and  this  was  what  neither 
Mr.  Clay, nor  Congress  would  do.  In  his  plan  of  compromise 
measures,  he  reviewed  the  Question  of  slavery  in  the  Territories, 
and  showed  it  to  be  settled  every  where,  and  refused  to  unsettle 
it  any  where,  for  the  purpose  of  settling  it  over  again.  "With 
respect  to  Utah  and  New  Mexico,  the  second  of  the  resolutions 
submitted  by  him  expressly  declared  that  slavery  did  not  exist 
there — that  it  was  abolished  by  the  laws  and  constitution  of 
Mexico,  and  would  remain  abolished  until  those  laws  were  re 
pealed  by  Congress — and  that  it  was  unnecessary  and  inexpedient 
"  to  adopt  any  restriction  or  condition  on  the  subject  of  slavery." 
This  was  the  non-intervention  of  1850.  It  was  the  non-inter 
vention  which  respects  existing  law  !  which  would  not  abolish 
law,  to  get  at  the  slave  institution  in  these  Territories,  either  to 
restrict, or  allow  it;  or  to  set  the  people  themselves  to  quarrelling 
and  fighting  about  it.  It  was  the  non-intervention  of  submission 
to  law ;  and  to  quote  it  as  a  precedent  and  authority  for  abro 
gating  the  Missouri  Compromise,  was  to  unsettle  what  had  been 
settled  for  thirty-four  years  by  that  compromise.  And  the 
clear  lesson  taught  by  the  measures  of  1850  was,  that  Congress 
would  not  repeal  a  law  to  re-open  the  hideous  slavery  question. 
That  is  the  lesson  taught !  non-interference  with  existing  laws  ! 
and  upon  this  lesson  the  Congress  of  1854  has  felt  itself  called 
upon  to  do  just  the  contrary  of  what  that  teaches — to  break 
down  one  of  the  most  sacred  and  extensive  of  these  benign 


154:  APPENDIX. 

laws,  and  to  revive  the  slavery  agitation  which  had  been  so 
well  and  so  long  settled  before.  This  is  what  the  Congress  of 
•54  did  !  just  the  reverse  of  what  the  conduct  of  the  Congress 
of  1850  taught — breaking  up  the  "finality"  then  established- 
setting  the  people  to  fighting  in  the  Territories — and  bringing 
the  question  back  into  Congress  under  the  pretence  of  keeping 
it  out  of  Congress,  when  it  was  already  out,  and  no  way  to  get 
it  in  again  except  by  breaking  down  a  law.  Such  is  the  inven 
tion,  as  barefaced  as  wicked,  to  which  the  repealers  have  had 
recourse  to  justify  their  destruction  of  the  Missouri  Compromise 
— a  crime  in  itself,  and  doubled  by  laying  it  on  an  innocent 
party ;  but  they  found  it  no  easy  matter  to  come  up  to  this 
invention.  Long  it  was  before  they  conceived  it,  and  various 
the  forms  under  which  it  appeared  before  it  took  the  shape  on 
which  all  rallied  and  stood  ;  but  of  this  hereafter. 

II.  \Ve  come  now  to  the  second  head  of  this  Review,  namely, 
the  manner,  (modus  operandi^)  in  wThich  the  repeal  of  the  Mis 
souri  Compromise  was  effected,  the  suddenness  of  the  turn 
against  that  measure,  and  the  unanimity  with  which  all  took 
the  track  after  its  repeal  was  determined  upon,  and  the  excuse 
provided  for  it.  To  do  this  it  will  be  necessary  to  go  back  a 
year — to  the  end  of  the  previous  session  of  Congress — and  see 
how  the  question  of  repeal  stood  then  ;  see  how  the  party  stood 
affected  towards  the  compromise  at  that  time.  This  will  be 
done  by  giving  the  words  of  one  who  is  authority  upon  this 
point — Mr.  Atchison,  of  Missouri — and  who,  in  coming  into  the 
support  of  the  then  impending  Nebraska  Bill  upon  the  basis  of 
the  compromise,  thus  expressed  himself : — 

"  I  will  now  state  to  the  Senate  the  views  which  induced  me  to  op 
pose  this  proposition  in  the  early  part  of  the  session.  I  had  two  objec 
tions  to  it.  One  was  that  the  Indian  title  to  that  Territory  had  not  been 
extinguished,  or  at  least  a  very  small  portion  of  it  had  been.  Another 
was  the  Missouri  Compromise,  or,  as  it  is  commonly  called,  the  slavery 
restriction.  It  was  my  opinion  at  that  time — and  I  am  now  very  clear 
on  that  subject — that  the  law  of  Congress  when  the  State  of  Missouri 
was  admitted  into  the  Union,  excluding  slavery  from  the  Territory  of 
Louisiana  north  of  36°,  30',  would  be  enforced  in  that  Territory  unless 
it  was  specially  rescinded  ;  and  whether  that  law  was  in  accordance  with 
the  Constitution  of  the  United  States  or  not,  it  would  do  its  work ;  and 
that  work  would  be  to  preclude  slaveholders  from  going  into  that  Terri- 


APPENDIX.  155 

tory.  But  when  I  came  to  look  into  that  question,  I  found  there  was 
no  prospect — no  hope — of  a  repeal  of  the  Missouri  Compromise  exclu 
ding  slavery  from  that  Territory.  Now,  sir,  I  am  free  to  admit  that 
at  this  moment,  at  this  hour,  and  for  all  time  to  come,  I  should  oppose 
the  organization  or  the  settlement  of  that  Territory,  unless  my  constitu 
ents,  and  the  constituents  of  the  whole  South,  of  the  slave  States  of  the 
Union,  could  go  into  it  upon  the  same  footing,  with  equal  rights  and 
equal  privileges,  and  carrying  that  species  of  property  with  them  as 
other  people  of  this  Union.  Yes,  sir,  I  acknowledge  that  that  would 
have  governed  me ;  but  I  have  no  hope  that  the  restriction  will  ever  be 
repealed.  I  have  always  been  of  opinion  that  the  first  great  error  com 
mitted  in  the  political  history  of  this  country,  was  the  ordinance  of 
1787,  rendering  the  North-western  Territory  free  territory.  The  next 
great  error  was  the  Missouri  Compromise.  But  they  are  both  irreme 
diable.  There  is  no  remedy  for  them.  We  must  submit  to  them.  I 
am  prepared  to  do  so.  It  is  evident  that  the  Missouri  Compromise 
cannot  be  repealed.  So  far  as  that  question  is  concerned,  we  might  as 
well  agree  to  the  admission  of  this  Territory  now  as  next  year,  or  five, 
or  ten  years  hence." 

So  spoke  Mr.  Atchison  ;  and  from  these  multiplied  declara 
tions  of  no  hope  for  the  repeal  of  the  Missouri  Compromise,  and 
from  the  declaration  that,  unless  specially  repealed,  it  would 
exclude  slaves  from  the  Territory,  we  are  allowed  to  draw  two 
conclusions.  First :  That  no  idea  of  ever  repealing  the  Missouri 
Compromise  then  existed.  Secondly:  That  no  idea  that  the 
compromise  measures  of  1850  had  repealed,  or  impaired  that 
line,  then  existed.  These  are  two  important  points  necessary  to 
be  known,  in  order  to  understand  the  subsequent  movement. 

It  was  on  a  motion  to  take  up  the  Nebraska  Bill,  and  put  it  on 
its  passage,  that  Mr.  Atchison  made  these  remarks.  Mr.  Doug 
lass,  the  reporter  of  the  bill,  was  present,  and  urgent  to  take  it 
up,  and  pass  it,  saying :  "  That  it  was  a  bill  very  dear  to  his 
heart — that  for  eight  long  years  he  had  been  trying  to  get  it 
through — and  that,  in  his  anxiety  to  pass  it,  he  would  yield  his 
privilege  of  speaking,  that  he  might  get  an  immediate  vote." 
But  others  would  speak :  it  was  the  last  night  of  the  session, 
when  discussion  was  fatal  to  any  bill.  It  was  not  taken  up. 
If  it  had  been,  it  would  certainly  have  passed  ;  and  if  it  had, 
the  American  people  would  never  have  heard  of  the  repeal  of 
the  Missouri  Compromise,  either  as  a  direct  act  in  1854,  or  as 


156  APPENDIX. 

the  effect  of  tlie  compromise  measures  of  1850 — albeit  two- 
thirds  of  the  Senate,  and  nearly  all  of  those  engaged  in  the  sub 
sequent  repeal  were  present !  not  one  recollecting  that  the  com 
promise  had  been  dead  for  three  years  !  and  deprived  of  life  by 
themselves ! 

This  was  the  end  of  Mr.  Fillmore's  administration.  His  suc 
cessor,  Mr.  Pierce,  found  the  country  in  the  most  happy  arid 
tranquil  state ;  peace  and  prosperity  at  home  and  abroad,  and 
slavery  agitation  stone  dead.  Felicitating  himself  upon  this 
delightful  state  of  the  country,  he  made  it  a  topic  of  national 
congratulation  in  his  first  annual  message,  and  thus  dilated  upon 
the  happy  auspices  which  saluted  his  nascent  administration  :— 

"  We  are  thus  not  only  at  peace  with  all  foreign  countries,  but  in 
regard  to  political  affairs,  are  exempt  from  any  cause  of  serious  disqui 
etude  in  our  domestic  relations.  The  controversies  which  have  agitated 
the  country  heretofore,  are  passing  away  with  the  causes  that  produced 
them,  and  the  passions  they  had  awakened;  or,  if  any  trace  of  them  re 
mains,  it  may  be  reasonably  hoped  that  it  will  only  be  perceived  in  the 
zealous  rivalry  of  all  good  citizens  to  testify  their  respect  for  the  rights 
of  the  States,  their  devotion  to  the  Union,  and  their  common  determi 
nation  that  each  one  of  the  States,  its  institutions,  its  welfare,  and  its 
domestic  peace,  shall  be  held  alike  secure  under  the  sacred  segis  of  the 
Constitution." 

Such  was  the  picture  of  the  national  felicity,  at  home  and 
abroad,  which.  Mr.  Pierce  drew  in  his  first  annual  message. 

*  O 

Slavery  agitation  extinct ;  its  causes  and  its  passions  all  gone ; 
no  trace  of  it  remaining ;  and  the  only  contention  among  the 
people  a  zealous  rivalry  in  showing  devotion  to  the  Union,  re 
spect  for  the  rights  of  the  States,  and  regard  for  their  domestic 
institutions.  It  was  a  charming  picture,  and  faithfully  drawn, 
and  universally  greeted  with  joy  ;  for  never,  since  the  first  term 
of  Washington's  administration,  had  there  been  such  a  political 
millennium  in  our  country  as  then  reigned.  The  message  did 
right  to  exult-over  it : — but,  oh  !  how  sadly  this  lovely  picture, 
drawn,  no  doubt,  by  the  President's  own  hand,  contrasts  with 
the  hideous  one  prepared  for  him  by  others  in  his  last  annual 
message,  and  which  it  required  eleven  pages  to  describe. 

At  this  session  of  Congress,  the  first  under  Mr.  Pierce's  ad 
ministration,  Mr.  Douglass  renewed  his  Nebraska  Bill,  being 
for  the  ninth  time,  and  still  on  the  basis  of  respect  and  perpetu- 


APPENDIX.  157 

ity  to  the  Missouri  Compromise  Act — a  proof  that,  up  to  that 
time,  he  had  no  idea  of  its  repeal  by  the  compromise  measures 
of  1850,  or  any  suspicion  that  it  had  been  in  any  way  affected 
by  those  measures,  then  three  years  old,  and  certainly  long 
enough  in  force  for  their  effect  to  be  known.  The  bill  was  re 
ferred  to  a  Committee,  which  returned  it  with  what  appears 
to  have  been  a  unanimous  report,  reciting  that  there  was  a  con 
troversy  about  the  validity  of  the  Missouri  Compromise  Act ; 
some  eminent  statesmen  holding  it  to  be  null  and  void  under  the 
Constitution,  and  others  holding  the  act  to  be  valid ;  and  conclu 
ding  with  declaring  that  the  Committee  did  not  feel  itself  called 
upon  to  engage  in  the  discussion  of  these  disputed  points,  and 
that  it  was  not  prepared  to  recommend  either  the  repeal  or  the 
affirmation  of  the  Missouri  Compromise  Act;  or  to  declare  the 
meaning  of  the  Constitution  with  respect  to  the  disputed  point, 
to  wit :  the  power  of  Congress  to  prohibit  slavery  in  a  Terri 
tory.  The  following  is  the  language  of  the  report  on  these 
points  : — • 

"  In  the  opinion  of  some  eminent  statesmen,  who  hold  that  Congress 
is  invested  with  no  rightful  authority  to  legislate  upon  the  subject  of 
slavery  in  the  Territories,  the  8th  section  of  the  act  preparatory  to  the 
admission  of  Missouri  into  the  Union  is  null  and  void ;  while  the  pre 
vailing  sentiment  in  large  portions  of  the  Union  sustains  the  doctrine 
that  the  Constitution  of  the  United  States  secures  to  every  citizen  an 
inalienable  right  to  move  into  any  of  its  Territories  with  his  property, 
of  whatsoever  kind  and  description,  and  to  hold  and  enjoy  the  same  under 
the  sanction  of  law.  Your  committee  do  not  feel  themselves  called 
upon  to  enter  into  the  discussion  of  these  controverted  questions.  They 
involve  the  same  issues  which  produced  the  agitation,  the  sectional 
strife,  and  the  fearful  struggle  of  1850.  As  Congress  deemed  it  wise 
and  prudent  to  refrain  from  deciding  the  matters  in  controversy  then, 
either  by  affirming  or  repealing  the  Mexican  laws,  or  by  an  act  declara 
tory  of  the  true  intent  of  the  Constitution,  and  the  extent  of  the  pro 
tection  afforded  by  it  to  slave-property,  so  your  committee  are  not  pre 
pared  to  recomnfeud  a  departure  from  the  course  pursued  on  that  memo 
rable  occasion,  either  by  affirming  or  repealing  the  8th  section  of  the 
Missouri  act,  or  by  any  act  declaratory  of  the  meaning  of  the  Con 
stitution  in  respect  to  the  legal  points  in  dispute." 

This  report  was  made  January  4th,  1854 ;  and  up  to  that 
day  it  is  seen  that  the  eminent  committee  which  made  it  saw 


158  APPENDIX. 

no  repeal  of  the  Missouri  Compromise  Act  in  the  measures  of 
1850 — saw  no  occasion  to  recommend  its  repeal — no  occasion 
to  declare  the  meaning  of  the  Constitution  with  respect  to  sla 
very  in  Territories.  They  abstain  from  doing  any  of  these 
things,  and  for  a  solid  and  patriotic  reason,  which,  they  state ; 
and  which  addresses  itself  to  the  best  feelings  of  all  the  friends 
of  the  Union.  It  was,  because  the  discussion  of  these  points 
"  involved  the  same  grave  issues  which  produced  the  agitation, 
the  sectional  strife,  and  the  fearful  struggle  of  1850. "  Solid, 
and  patriotic  reasons  for  not  engaging  in  such  business,  and  good 
for  all  time.  The  struggle  of  1850  was  indeed  fearful,  and  por 
tended  the  immediate  dissolution  of  the  Union.  One  of  those 
conventions  which  commenced  in  1830,  and  which  have  TDC- 
come  an  institution  of  the  South,  and  which  Mr.  Madison  qual 
ified  as  "  insidious,"  had  then  assembled  at  Nashville,  Tennes 
see — taken  the  question  of  union,  or  disunion,  into  its  hands — 
and  were  openly  passing  measures  for  the  separation  and  segre 
gation  of  the  Southern  States.  The  compromise  measures  of 
1850,  being  received  as  a  "finality"  by  the  country,  checked 
this  parricidal  work ;  and  the  committee,  of  whose  report  we 
speak,  acted  wisely  and  patriotically  in  not  touching  those 
questions  which  "  produced  the  agitation,  the  sectional  strife, 
and  the  fearful  struggle  of  1850  ;  "  and  in  not  disturbing  those 
compromise  measures  of  that  year  which  allayed  that  agitation, 
composed  that  strife,  and  terminated  that  fearful  struggle.  The 
committee  which  made  the  report  was  strongly  Southern  in  its 
composition — one  half  from  the  slave  States — the  other  half 
(except  one)  as  strongly  Southern  as  the  South  itself  on  all  the 
slavery  issues ;  and  unanimous  in  the  report.  They  were  : 
Messrs.  Douglass,  of  Illinois,  chairman ;  Houston,  of  Texas ; 
Johnson,  of  Arkansas  ;  Bell,  of  Tennessee  ;  Jones,  of  Iowa ; 
and  Everett  of  ^Massachusetts.  The  report  was  so  acceptable  to 
the  Senate  that,  as  soon  as  it  was  read,  the  large  number  of 
5,000  extra  copies  were  ordered  to  be  printed  for  the  use  of  the 
body — that  is  to  say,  for  the  Senators  to  distribute  among  the 
citizens  of  the  States,  for  their  information  of  the  manner  in 
which  the  Senate  was  keeping  out  of  its  chamber  the  portentous 
issues  which  had  so  lately  convulsed  the  country. 

This  report  was  received  as  cordially  outside  of  the  Senate 
as  in  it.     All  the  friends  of  the  Administration  applauded  it. 


APPENDIX.  159 

The   Daily    Union, — the     administration    paper,  its    organ, — 
and  in  which  several  members  of  the  cabinet  habitually  wrote, 
was  most  encomiastic  in  its  favor  ;  and  not  merely  in  favor  of 
the  report,  but  of  the  Senator  who  drew  it,  applauding  him  for 
the  "  sound,  national,  and  Union-loving  sentiments  with  which 
it  abounds."     The  report  itself  was  immediately  published  in 
full  in  the  official  paper,  and  earnestly  commended  to  the  care 
ful  perusal  of  every  democrat,  with  the  declaration  that  the 
President  and  cabinet  all  approved  it.     And  this  laudation  be 
came  more  and  more  intense  from  day  to  day,  until  it  took  the 
form  of  fierce  censures  "  against  the  whigs  and  abolitionists," 
who  were  against  it,  because  they  wanted  to  embarrass  the  ad 
ministration — and  a  rebuking  caution  to  such  Southern  demo 
crats  as  showed  a  disposition  to  bring  "  an  angry  element  of 
discord  into  the  halls  of  legislation."     The  occasion  for  these 
censures  and  admonitions  was  this  :  Mr.  Dixon,  a  whig  Senator 
from  Kentucky,  gave  notice  on  the  16th  of  January,  that  when 
the  bill  came  up  for  consideration  he  should  move  to  add  a  sec 
tion  to  it,  repealing  the  Missouri  Compromise  Act  of  1820  ; 
and  Mr.  Sumner,  a  free-soil  Senator  from  Massachusetts,  gave 
notice  on  the  other  hand,  that  he  would  at  the  same  time  move 
an   amendment  affirming  that  compromise.     Both  these  propo 
sitions   were   immediately  denounced  by  the  Daily  Organ  in 
terms,  not  only  of  condemnation,  but  of   opprobrium — thus : 
"  Two  propositions  have  been  made  in  the  Senate — one  by  Sen 
ator  Dixon,  a  whig,  and  the  other  by  Senator  Sumner,  an  abo 
litionist — which  indicate  that  the  bill,  as  proposed  by  Mr.  Doug 
lass,  is  to  be  vigorously  assailed.    Mr.  Dixon  proposes  to  amend 
it,  by  a  clause  expressly  repealing  the  act  of  1820,  commonly 
known  as  the  Missouri  Compromise.     Mr.  Sumner  proposes  to 
amend  it,  by  expressly  declaring  that  the  Missouri  Compromise 
is  to  be  continued  in  force."     Thus,  these  two  propositions  were 
immediately   denounced,   and    the   democratic    party  warned 
against  them.     They  were  met  as  hostile.     They  indicated  as 
sault  (and  vigorous  assault)  upon  the  bill  of  Mr.  Douglass ;  and 
to  aggravate  the  nature  of  this  assault,  as  if  not  bad  enough  in 
itself,  it  was  carefully  noted  that  these  propositions  came  from 
a  whig  and  an  abolitionist.  The  Daily  Union,  by  way  of  commend 
ing  Mr.  Douglass's  bill  and  report,  went  on  to  declare  Mr.  Cass's 
perfect  satisfaction  with  it,  and  to  deprecate  the  reopening  of  the 


160  APPENDIX. 

slavery  question,  as  proposed  by  the  whig  and  abolition  Sena 
tors,  It  gave  its  opinion  of  the  effect  of  their  propositions, 
saying  :  "  Mr.  Dixon's  amendment  would  stir  up  excitement  on 
one  side,  whilst  Mr.  Sumner's  will  effect  the  like  object  on  the 
other :  and  as  whigism  and  abolitionism  have  every  thing  to 
gain,  and  nothing  to  lose,  the  upshot  may  be  that  the  agitation 
may  enure  to  the  benefit  of  the  common  opposition  of  the  demo 
cratic  party."  These  remarks  of  the  Organ  are  as  significant 
as  explicit.  The  proposed  amendments  are  to  stir  up  excite 
ment,  and  to  produce  agitation ;  and  this  excitement  and  agita 
tion,  it  is  apprehensively  expressed,  may  enure  to  the  benefit 
of  the  enemies  of  democracy.  The  Organ  then  proceeds  to 
counsel  adherence  to  the  bill  and .  report  of  Mr.  Douglass — to 
let  well  enough  alone — and,  in  that  phrase,  to  let  the  Missouri 
Compromise  alone.  In  this  sense,  it  thus  discoursed :  "In  a 
word,  it  would  be  wise  in  all  democrats  to  consider  whether  it 
would  not  be  safest  to  let  well  enough  alone."  And  then  goes 
on  to  say — "  The  repeal  of  the  Missouri  Compromise  might, 
and,  according  to  our  view,  wrould,  clear  the  principle  of  Con 
gressional  non-intervention  of  all  embarrassment ;  but  we  doubt 
whether  the  good  thus  promised  is  so  important,  that  it  would 
be  wise  to  seek  it  through  the  agitation  which  necessarily  stands 
in  our  path."  And  upon  this  view  of  the  consequences  of  dis 
turbing  the  compromise — inevitable  agitation — and  upon  this 
doubt  of  profit  or  loss  to  the  democratic  party  in  rousing  that 
agitation,  the  Daily  Union  deems  it  "  safest,"  and  "  wisest,"  to 
let  well  enough  alone — that  is  to  say,  let  the  Missouri  Compro 
mise  stand  untouched,  as  proposed  in  Mr.  Douglass's  bill  and  re 
port.  And  to  this  effect  were  several  articles,  and  sometimes 
as  high  as  seven  in  one  paper,  all  denouncing  the  whig  and 
abolition  propositions  of  Mr.  Dixon  and  Mr.  Simmer,  and  re- 
enforcing  its  denunciations  by  constantly  assuming  to  speak  the 
sentiments  of  the  President,  his  cabinet,  and  the  democratic 
party. 

But  it  would  seem  that  Mr.  Dixon's  proposition  inflamed  the 
hopes  of  some  Southern  members  who  wished  for  the  direct  re 
peal  of  the  compromise,  and  who  began  to  object  to  Mr.  Doug 
lass's  bill  and  report,  for  not  going  far  enough ;  and  these  the 
Daily  Organ  undertook  to  restrain  and  pacify,  by  addressing  to 
them  a  sort  of  curtain  lecture — a  mixture  of  expostulation,  per- 


APPENDIX.  161 

suasion,  and  menace.  In  tins  vein  it  thus  discoursed  in  its  issue 
of  the  17th  of  January  :  "  If  any  portion  of  the  South  demands 
more  than  is  granted  in  this  plan  of  settlement,  the  demand  is 
preposterous.  We  sincerely  trust  the  democratic  party  in  Con 
gress,  representing  all  sections  of  the  Confederacy,  will,  without 
permitting  an  angry  element  of  discord  to  enter  the  halls  of  leg 
islation,  unite  in  adopting  a  measure  which  commands  the  ap 
proval  of  a  vast  preponderance  of  the  American  people."  This 
appeal  to  the  "  South" — or  rather,  to  a  portion  of  the  South — 
is  every  word  of  it  significant.  In  the  first  place,  to  give  weight 
to  its  exhortation,  the  Organ  declares  its  own  sincerity  in  trust 
ing  that  no  one  of  the  democratic  party,  from  any  section  of 
the  Union,  will  indulge  in  a  demand  -which  it  stigmatizes  as 
"  preposterous."  It  deprecates  the  entrance  into  the  halls  of 
legislation  of  the  angry  element  of  discord  which  the  attempt 
ed  repeal  of  the  Missouri  Compromise  would  involve,  and  calls 
for  all  to  "  unite  "  in  the  adoption  of  Mr.  Douglass's  bill  and  re 
port.  And  to  give  weight  to  this  exhortation  to  unity  in  the 
whole  democratic  party,  the  Organ  emerges  from  the  mere  pre 
cincts  of  the  party,  and  takes  post  upon  the  whole  American 
people  !  declaring  the  measures  to  have  a  vast  preponderance 
of  this  whole  people !  And  here  the  date  is  as  important  as  the 
words,  showing  how  the  question  stood  up  to  the  eve  of  the  cri 
sis  ;  it  was  the  17th  of  January — that  is  to  say,  twelve  days  after 
Mr.  Douglass's  report  had  been  made,  and  six  days  before  the 
unforeseen  catastrophe  that  history  will  have  to  record.  In  the 
same  vein,  the  Daily  Organ  again  wrote  three  days  afterwards, 
to  wit,  on  the  20th,  under  the  head,  in  capitals,  "  MISSOURI  COM 
PROMISE,"  when  it  said :  "  We  trust  that  we  shall  not  be  con 
sidered  officious  in  noting  the  fact,  that  the  proposition  in  the 
Senate  for  the  amendment  of  Mr.  Douglass's  bill  has  proceeded 
from  members  of  the  two  parties  who  are  irreconcilably  op 
posed  to  democratic  ascendency."  And  again,  on  the  22d, 
"  The  settlement  of  the  question  involved  in  the  Nebraska  Bill, 
calls  for  the  exercise  of  that  spirit  of  conciliation  and  forbear 
ance  by  which  alone  sectional  issues  can  be  amicably  and  satis 
factorily  adjusted." 

Thus,  up  to  the  morning  of  the  22d  day  of  January,  the 
President  and  the  cabinet,  (according  to  the  Daily  Union,)  the 
democratic  party,  and  a  vast  majority  of  the  whole  American 
11 


162  APPENDIX. 

people,  were  opposed  to  disturbing  the  Missouri  Compromise — 
and  none  but  abolitionists  and  whigs  were  for  that  disturbance — 
and  thus  to  excite  agitation,  and  to  bring  an  angry  element  of 
discord  into  the  halls  of  legislation.  But  these  quotations  are 
but  a  sample  of  the  articles  to  this  effect  diurnally  appearing  in 
the  administration  paper  for  seventeen  days,  and  by  all  of 
which  Mr.  Douglass's  plan  was  made  an  administration  measure, 
supported  by  all  true  democrats,  and  only  opposed  by  whigs 
and  abolitionists. 

But  the  ides  of  March  were  approaching — close  at  hand — 
and  the  event  to  take  place  of  which  there  were  no  portents  in 
the  political  horizon. 

Mr.  Douglass  had  got  the  Nebraska  Bill  (for  up  to  this  time 
that  is  the  only  name  it  bore)  recommitted  to  the  Committee 
which  had  reported  it,  and  had  got  Monday,  the  23d  day  of 
January,  fixed  as  the  day  for  its  consideration  ;  but  when  the 
day  came,  that  bill,  instead  of  being  taken  up  for  consideration, 
as  agreed  upon,  was  dropped  from  the  calendar  of  the  Senate  ; 
and  two  bills  in  one,  called  a  substitute,  for  two  Territories,  rose 
up  in  its  place.  It  was  an  apparition  which  required  explana 
tion — and  received  it.  Mr.  Douglass  rose  to  ask  leave  to  make 
a  report  from  the  Committee  on  Territories ;  and  leave  being 
given,  he  reported  a  substitute  for  the  bill  which  he  had  report 
ed  on  the  5th  of  the  month,  and  after  stating  the  reasons  for 
making  two  Territories  instead  of  one,  went  on  to  speak  of  what 
he  termed  "the  more  delicate  questions"  it  involved,  in  this 
wise  :  "  We  have  also  incorporated  in  it  one  or  two  other  amend 
ments,  which  make  the  provisions  of  the  bill  upon  other  and 
more  delicate  questions,  more  clear  and  specific,  so  as  to  avoid 
all  conflict  of  opinion."  Without  stating  what  these  "  delicate  " 
amendments  were,  he  moved  that  the  substitute  be  printed — 
which  motion  prevailing,  necessarily  postponed  the  considera 
tion  of  the  substitute  bills  until  the  printing  could  be  accom 
plished.  Mr.  Douglass  had  said  that  the  substitute  had  come 
from  the  Committee  :  to  make  sure  on  that  point,  Mr.  Mason, 
of  Virginia,  addressed  a  question  to  Mr.  Douglass,  thus  :  "  I 
did  not  hear  the  honorable  Senator  from  Illinois  distinctly,  and 
I  wish  to  know  whether  the  amendment  he  now  proposes  as  a 
substitute  is  reported  from  the  Committee  ? "  To  which  Mr. 
Douglass  answered  in  two  words,  of  two  letters  each,  "It  is;" 


APPENDIX.  163 

and  the  answer  may  be  said  to  include  the  whole  of  the  Com 
mittee,  except  Mr.  Everett,  of  Massachusetts,  as  he  alone,  in  the 
course  of  the  proceedings,  showed  himself  to  be  in  opposition 
to  it.  And  at  this  point  the  proceedings  for  the  day  stopped— 
110  one  inquiring  what  these  delicate  amendments,  which  had 
been  so  gingerly  *  alluded  to,  might  be. 

The  24:th  came,  and  Mr.  Douglass  asked  for  the  considera 
tion  of  his  substitute  bill — a  bill  to  organize  the  Territories  of 
Nebraska  and  Kansas ;  and  by  that  title  the  bill  was  subse 
quently  known.  Several  Senators  objected  to  taking  up  the 
bill  so  suddenly,  and  asked  for  a  week's  delay — among  them 
Mr.  Cass.  Mr.  Dixon  also  was  in  favor  of  the  delay,  giving  the 
manly  reason  that  there  ought  to  be  time  for  all  to  understand 
the  measure  proposed.  In  this  sense  Mr.  Dixon  spoke,  conclu 
ding  with  giving  his  idea  of  what  the  "delicate"  amendment 
was,  thus  :— 

"  The  amendment,  which  I  notified  the  Senate  I  should  offer  at  a 
proper  time,  has  been  incorporated  by  the  Senator  from  Illinois  into  the 
bill  which  he  has  reported  to  the  Senate.  The  bill,  as  now  amended, 
meets  my  views,  and  I  have  no  objection  to  it.  I  shall,  at  the  proper 
time,  as  far  as  I  am  able  to  do  so,  aid  and  assist  the  Senator  from  Illi 
nois,  and  others  who  are  anxious  to  carry  through  this  proposition,  with 
the  feeble  abilities  I  may  be  able  to  bring  to  bear  upon  it." 

With  this  declaration,  Mr.  Dixon  formally  withdrew  his 
proposition  for  the  repeal  of  the  Missouri  Compromise  Act,  and 
Mr.  Douglass  formally  accepted  his  exposition  of  its  meaning ; 
and  the  consideration  of  the  bill  was  then  postponed  for  a  week. 
Mr.  Dixon  advocated  this  postponement,  saying  :— 

"  I  think  it  due  to  the  Senate  that  they  should  have  an  opportunity 
of  understanding  precisely  the  bearings  and  the  effect  of  the  amend 
ment  which  has  been  recently  incorporated  into  the  bill — I  mean  that 
portion  of  the  amendment  which  alludes  to  slavery  in  the  Territories 
proposed  to  be  organized — Nebraska  and  Kansas.  So  far  as  I  am  indi 
vidually  concerned,  I  am  perfectly  satisfied  with  the  amendment  reported 
by  the  Senator  from  Illinois,  and  which  has  been  incorporated  into  the 
bill.  If  I  understand  it,  it  reaches  a  point  I  am  most  anxious  to 
attain — that  is  to  say,  it  virtually  repeals  the  act  of  1820,  commonly 

*  Used  in  the  primitive  sense  of  the  word ;  nicety,  cautiously. 


164  APPENDIX. 

called  the  Missouri   Compromise  Act,  which  declares  that  slavery  shall 
not  exist  north  of  36  degrees  30  minutes,  north  latitude." 

This  "  delicate  "  amendment  was  very  daintily  and  circui- 
tously  expressed,  coming  in  the  way  of  exception  to  the  exten 
sion  of  the  Constitution  and  laws  of  the  United  States  to  the 
two  Territories,  and  because  superseded  by  the  Compromise 
measures  of  1850,  and  become  inoperative.  Thus  :— 

"  The  Constitution,  and  all  laws  of  the  United  States,  not  locally 
inapplicable,  shall  have  the  same  force  and  effect  in  the  said  Territory, 
as  elsewhere  in  the  United  States,  except  the  eighth  section  of  the  act 
preparatory  to  the  admission  of  Missouri  into  the  Union,  approved 
March  6th,  1820,  which  was  superseded  by  the  principles  of  the  legisla 
tion  of  1850,  commonly  called  the  Compromise  measures,  and  is  de 
clared  inoperative." 

This  mode  of  repeal  was  satisfactory  to  Mr.  Dixon,  but  it  was 
not  so  to  those  who  drew  it,  or  some  of  those  who  would  have 
to  support  it.  It  was  too  glaringly  absurd  and  false  for  them  to 
go  to  trial  upon  it.  The  Missouri  Act  "  superseded  by  the 
principles  of  the  legislation  of  1850."  The  assertion  was  as  un 
true  in  fact  as  in  logic,  and  would  so  appear  at  the  first  touch 
of  examination.  Holding  the  affirmative  of  the  assertion,  its 
authors  would  be  called  upon  for  the  proof,  and  required  to 
show  the  principle  which  "superseded"  an  old  Act  of  Congress 
of  thirty-four  years'  standing.  That  could  not  be  done  ;  on  the 
contrary,  it  would  appear,  from  all  the  legislation  of  Congress 
of  that  year,  that  the  Missouri  Compromise  Act  remained  un 
touched — neither  extended  nor  contracted  in  length,  nor  en 
larged  or  diminished  in  its  application,  nor  interfered  with  by 
any  enactment.  It  became  necessary,  therefore,  to  drop  this 
"  superseding,"  and  change  it  into  "  inconsistent ;  "  and  also  to 
introduce  the  principle  of  "  non-intervention,"  and  to  add  the 
word  "  void  "  to  "  inoperative  ;  "  and  then  to  add  a  little  stump 
speech  to  explain  what  all  this  meant.  Thus  altered,  the  re 
pealing  enactment,  as  eventually  settled  down  upon,  ran  in  these 
words  : — 

"  The  Constitution,  and  all  laws  of  the  United  States  which  are  not 
locally  inapplicable,  shall  have  the  same  force  and  effect  within  the  said 
Territory  of  Nebraska  as  elsewhere  in  the  United  States,  except  the 
eighth  section  of  the  act  preparatory  to  the  admission  of  Missouri  into 


APPENDIX.  165 

the  Union,  approved  March  6th,  1820,  which,  being  inconsistent  with 
the  principle  of  non-intervention  by  Congress  with  slavery  in  the  States 
and  Territories,  as  recognized  by  the  legislation  of  1850,  commonly 
called  the  Compromise  measures,  is  hereby  declared  inoperative  and 
void ;  it  being  the  true  intent  and  meaning  of  this  act  not  to  legis 
late  slavery  into  any  Territory  or  State,  nor  to  exclude  it  therefrom, 
but  to  leave  the  people  thereof  perfectly  free  to  form  and  regulate  their 
domestic  institutions  in  their  own  way,  subject  only  to  the  Constitution 
of  the  United  States." 

And  thus,  three  years  after  the  event,  and  by  a  sort  of  polit 
ical  coroner's  inquest,  the  Missouri  Compromise  Act  was  found 
to  be  dead,  and  killed  by  those  who  (in  much  part)  composed 
the  jury  ;  and  who,  for  so  long  a  time,  had  remained  ignorant 
of  what  they  had  done. 

This  was  the  final  form  which  the  repealing  clause  took ; 
and  the  variations  it  underwent,  with  its  circumlocutions  and 
ambiguities,  show  the  infinite  trouble  its  authors  had  in  cook 
ing  up  something  which  would  make  the  repeal  without  saying 
so,  and  throw  upon  others  the  odium  of  an  abrogation  which 
they  had  the  will  but  not  the  face  to  make.  Though  not  so 
glaringly  absurd  and  false  as  the  first  edition  of  the  "  delicate  " 
amendment,  it  was  more  crooked  and  circuitous — equally  un 
founded  in  fact  and  inference — equally  false  and  unjust  in 
making  the  Congress  of  1850  the  scape-goat  of  its  own  sin — 
and  dishonorable  to  the  name  of  legislation,  by  the  little  stump 
speech  which  is  stuck  into  its  belly.  Fairly  interpreted,  and  this 
novel  method  of  enactment  signifies  that  they  found  the  Mis 
souri  Compromise  repealed  three  years  before,  and  therefore 
they  would  repeal  it  over  again — about  as  bad  a  plea  in  legisla 
tion  as  in  the  administration  of  justice.  For,  a  plea  from  a 
man  arraigned  for  a  homicide,  that  he  found  the  man  dead  and 

O  ' 

killed  him  over  again,  would  not  be  admitted  as  a  good  plea  in 
any  court,  either  of  law  or  conscience.  And  yet  of  that  nature 
is  the  plea  for  repealing  the  Missouri  Compromise. 

This  amended  amendment,  in  a  substitute  bill,  brings  for 
ward  the  principle  of  "  non-intervention  "  on  the  subject  of 
slavery  in  Territories,  and  finds  it  established  in  the  legislation 
of  1850 ! — which  legislation  established  directly  the  contrary. 
That  legislation,  in  plain  language,  refused  to  pass  any  provision 
on  the  subject  of  slavery  in  the  Territories  acquired  from  Mex- 


166  APPENDIX. 

ico,  either  admitting  or  prohibiting  it,  Because  slavery  was 
already  abolished  there  l)y  the  laws  of  Mexico.  It  would  not 
prohibit  slavery  there,  because  it  was  already  prohibited.  It 
would  not  repeal  that  law  to  admit  slavery,  because  it  would  not 
plant  slavery  where  it  did  not  exist.  It  would  not  repeal  the 
law  and  say  nothing,  because  that  would  be  to  unsettle  the 
question  where  it  was  already  settled,  and  settled  to  the  satis 
faction  of  a  great  majority  of  Congress,  and  of  the  people  of 
the  United  States.  This  was  the  "  non-intervention "  of  the 
legislation  of  1850 !  Not  intervene  to  break  down  a  law  to 
open  the  slavery  question  where  it  was  settled,  and  set  people 
to  quarrelling  and  fighting  about  it.  That  was  the  non-inter 
vention  (if  the  absurd  term  must  be  used  where  there  was  no 
thing  to  get  between),  and  on  this  point  one  shall  speak  whose 
voice  will  be  potential,  and  from  the  grave  rebuke  those  who 
libel  his  memory  in  quoting  him  falsely,  to  justify  the  destruc 
tion  of  a  measure  which  it  was  one  of  the  glories  of  his  life  to 
have  promoted. 

I  speak  of  Mr.  Clay,  and  of  his  report  and  speeches  on  his 
compromise  measures  of  1850,  and  in  which  he  has  spoken  for 
himself  with  a  clearness  and  precision  which  admits  of  no  mis 
understanding. 

His  report,  embracing  all  his  compromise  measures,  con 
cluded  with  digesting  their  substance  into  seven  resolutions, 
presented  for  the  adoption  of  the  Senate,  the  second  one  of 
which  applied  to  the  point  now  under  examination,  and  was  in 
these  words  :— 

"  Resolved,  That  as  slavery  does  not  exist  by  law,  and  is  not  likely 
to  be  introduced  into  any  of  the  territory  acquired  by  the  United 
States  from  the  Republic  of  Mexico,  it  is  inexpedient  for  Congress  to 
provide  by  law,  either  for  its  introduction  into,  or  exclusion  from,  any 
part  of  the  said  territory;  and  that  appropriate  territorial  govern 
ments  ought  to  be  established  by  Congress  in  all  of  the  said  territory, 
not  assigned  as  the  boundaries  of  the  proposed  State  of  California, 
without  the  adoption  of  any  restriction  or  condition  on  the  subject  of 
slavery." 

This  was  the  principle  of  Mr.  Clay's  non-intervention,  as  it  is 
called.  It  was  non-interference  !  Non-interference  to  unsettle 
slavery  where  it  was  settled  !  It  was  non-interference  with  the 


APPENDIX.  ,167 

law  which  settled  it !  and  there  was  no  clap-trap  blarney  about 
leaving  the  inhabitants  of  the  Territories  to  regulate  their  domes 
tic  institutions  as  they  pleased.  There  was  no  explanatory 
stump  speech  in  it  to  declare  its  true  intent  and  meaning.  That 
true  intent  and  meaning  was  placed  at  the  head  of  the  resolu 
tion,  and  showed  that  Congress  would  not  interfere  with  slavery 
in  these  Territories,  because,  by  law,  it  was  already  prohibited 
there.  This  is  what  the  resolve  says,  and  the  same  sentiment 
was  reiterated  in  the  speech  which  recommended  its  adoption 
to  the  Senate.  Every  where  in  his  speeches  and  reports  his 
non-interference  was  put  upon  that  ground  ;  and  many  Senators, 
in  voting  against  the  "Wilmot  proviso,  gave  the  express  reason 
for  their  vote,  that  there  was  no  necessity  for  it,  for  the  Mexican 
laws  had  put  an  end  to  slavery  there,  and  that  further  legisla 
tion  to  that  effect  was  supererogation.  And  thus  the  interference 
of  1850  was  a  refusal  to  break  down  a  law  to  open  the  question 
of  slavery ;  and  that  is  quoted  in  1854  as  authority  for  doing 
precisely  the  contrary.  The  little  stump  speech  which  was  put 
into  the  act  about  not  legislating  slavery  in  or  out  of  the  Terri 
tory,  and  leaving  the  people  free  to  regulate  their  domestic  in 
stitutions,  could  only  deceive  those  who  forgot  the  first  word  of 
the  amendment — the  extension  of  the  Constitution  to  the  Terri 
tory! — carrying  along  with  it  (according  to  the  doctrine  of 
those  who  put  it  there)  African  slavery  in  the  most  inexorable 
form ! — beyond  the  power  of  Congress,  or  of  the  people  in  the 
Territory  to  keep  it  out !  And  this  was  the  crooked,  ambigu 
ous,  falsely  pretexted,  and  contradictory  mode  of  repealing  the 
Missouri  Compromise,  which  the  substitute  bill  of  Mr.  Douglass 
so  "  delicately  "  provided. 

The  report  and  speech  of  Mr.  Clay — his  resolve  submitted  to 
the  Senate  for  its  vote — is  a  sufficient  vindication  of  himself,  his 
measures,  and  the  legislation  of  1850,  from  the  imputation  cast 
on  them ;  but  there  is  another  authority,  equally  potent  in  this 
case,  to  make  the  same  vindication :  it  is  the  report  of  Mr. 
Douglass  made  at  the  first  introduction  of  his  bill,  as  heretofore 
quoted.  That  report,  after  reciting  that  there  was  a  dispute 
about  the  Mexican  laws,  as  there  was  about  the  Missouri  Com 
promise,  went  on  to  applaud  the  wisdom  and  prudence  of  the 
Congress  of  1850  in  refraining  from  deciding  that  dispute, 
"  either  hy  affirming  or  repealing  the  Mexican  laws  y  "  which  is 


168  APPENDIX. 

the  exact  truth.  The  Congress  of  1850  would  not  interfere  with 
that  Mexican  law.  And  that  non-interference,  after  being  first 
quoted  in  the  report  to  justify  non-interference  with  the  Mis 
souri  Compromise,  is  afterwards  quoted  in  the  amended  amend 
ment  of  the  substitute  bill,  as  a  precedent  and  authority  for  re 
pealing  the  Missouri  act.  The  first  quotation  was  right;  the 
second,  flagrantly  false. 

The  Dixon  w^hig  amendment  was  now  incorporated  in  the 
democratic  substitute  bill,  but  without  any  of  the  manliness 
which  belonged  to  it  when  offered  by  the  whig  Senator.  His 
amendment  was  direct  and  to  the  point,  without  any  of  the  cir 
cumlocutions,  excuses,  justifications,  bolsterings,  explanations, 
recommendations,  and  reference  to  others,  which  imply  a  con 
sciousness  of  wrong  which  requires  defence  before  it  is  attacked. 
It  went  direct  to  the  repeal  of  the  Missouri  Compromise,  and  to 
the  admisson  of  slavery  into  all  the  Territories  of  the  United 
States,  while  the  substitute  went  to  the  same  effect,  but  circui- 
tously,  crookedly,  apologetically,  and  argumentatively  ;  and  im 
proving  in  its  reasons  as  it  advanced,  the  second  substitute  being 
a  large  emendation  of  the  first,  and  both  in  flat  contradiction  of 
the  original  bill  and  report,  upon  which  all  democrats  had  been 
required  to  stand  and  to  fight,  under  the  penalty  of  political  ex 
communication,  and  future  classification  with  whigs  and  aboli 
tionists.  For  the  sake  of  convenient  comparison,  I  here  repro 
duce,  and  in  juxtaposition,  the  four  shifting  phases  of  this  legis 
lative  luminary  :— 

FIRST  PHASE. — "  In  the  opinion  of  some  eminent  statesmen,  who 
hold  that  Congress  is  invested  with  no  rightful  authority  to  legislate 
upon  the  subject  of  slavery  in  the  Territories,  the  eighth  section  of  the 
act  preparatory  to  the  admission  of  Missouri  into  the  Union,  is  null  and 
void  ;  while  the  prevailing  sentiment  in  large  portions  of  the  Union  sus 
tains  the  doctrine,  that  the  Constitution  of  the  United  States  secures  to 
every  citizen  an  inalienable  right  to  move  into  any  of  its  Territories 
with  his  property,  of  whatsoever  kind  and  description,  and  to  hold  and 
enjoy  the  same  under  the  sanction  of  law.  Your  Committee  do  not  feel 
themselves  called  upon  to  enter  into  the  discussion  of  these  controverted 
questions.  They  involve  the  same  issues  which  produced  the  agitation, 
the  sectional  strife,  and  the  fearful  struggle  of  1850.  As  Congress 
deemed  it  wise  and  prudent  to  refrain  from  deciding  the  matters  in  con 
troversy  then,  either  by  affirming  or  repealing  the  Mexican  laws,  or  by 


APPENDIX.  169 

an  act  declaratory  of  the  true  intent  of  the  Constitution,  and  the  extent 
of  the  protection  afforded  by  it  to  slave  property,  so  your  Committee 
are  not  prepared  to  recommend  a  departure  from  the  course  pursued 
on  that  memorable  occasion,  either  by  affirming  or  repealing  the  eighth 
section  of  the  Missouri  act,  or  by  any  act  declaratory  of  the  meaning  of 
the  Constitution  in  respect  to  the  legal  points  in  dispute," 

[Mr.  Douglases  Report. 

SECOND  PHASE. — "  That  so  much  of  the  eighth  section  of  an  act  ap 
proved  March  6th,  1820,  entitled  '  An  act  to  authorize  the  people  of  the 
Missouri  Territory  to  form  a  constitution  and  State  government,  and 
for  the  admission  of  such  State  into  the  Union  on  an  equal  footing  with 
the  original  States,  and  to  prohibit  slavery  in  certain  Territories,'  as  de 
clares  c  That,  in  all  that  territory  ceded  by  France  to  the  United  States, 
under  the  name  of  Louisiana,  which  lies  north  of  36°  30'  north  latitude, 
slavery  and  involuntary  servitude,  otherwise  than  in  the  punishment  of 
crimes  whereof  the  parties  shall  have  been  duly  convicted,  shall  be  for 
ever  prohibited,'  shall  not  be  so  construed  as  to  apply  to  the  Territory 
contemplated  by  this  act,  or  to  any  other  territory  of  the  United  States ; 
but  that  the  citizens  of  the  several  States  or  Territories  shall  be  at  lib 
erty  to  take  and  hold  their  slaves  within  any  of  the  Territories  of  the 
United  States,  or  of  the  States  to  be  formed  therefrom,  as  if  the  said 
act,  entitled  as  aforesaid,  had  never  been  passed." 

[Mr.  Dixon's  Amendment. 

THIRD  PHASE. — "  That  the  Constitution,  and  all  laws  of  the  United 
States  which  are  not  locally  inapplicable,  shall  have  the  same  force  and 
effect  within  the  said  Territory  as  elsewhere  in  the  United  States,  except 
the  eighth  section  of  the  act  preparatory  to  the  admission  of  Missouri 
into  the  Union,  approved  March  6th,  1820,  which  was  superseded  by 
the  principles  of  the  legislation  of  1850,  commonly  called  the  Compro 
mise  Measures,  and  is  declared  inoperative." 

[First  Substitute. 

FOURTH  PHASE. — "  The  Constitution,  and  all  laws  of  the  United 
States  which  are  not  locally  inapplicable,  shall  have  the  same  force  and 
effect  within  the  said  Territory  as  elsewhere  in  the  United  States,  except 
the  eighth  section  of  the  act  preparatory  to  the  admission  of  Missouri 
into  the  Union,  approved  March  6th,  1820,  which,  being  inconsistent 
with  the  principle  of  non-intervention  by  Congress  with  slavery  in  the 
States  and  Territories,  as  recognized  by  the  legislation  of  1850,  com 
monly  called  the  Compromise  Measures,  is  hereby  declared  inoperative 
and  void ;  it  being  the  true  intent  and  meaning  of  this  act,  not  to  legis- 


170 


APPENDIX. 


late  slavery  into  any  Territory  or  State,  nor  to  exclude  it  therefrom, 
but  to  leave  the  people  thereof  perfectly  free  to  form  and  regulate  their 
domestic  institutions  in  their  own  way,  subject  only  to  the  Constitution 
of  the  United  States."  [Second  Substitute. 

In  this  fourth  phase,  it  is  to  be  noted  by  the  reflecting  reader, 
that  "  States  "  are  introduced,  and  placed  on  a  level  with  Terri 
tories  in  the  article  of  negro  slavery  !  and  making  it  a  merit  in 
the  bill,  that  it  did  not  legislate  slavery  into  any  State,  or  out  of 
any  State  ;  but  left  it  free  to  States,  as  well  as  Territories,  to 
have  slaves,  or  not,  as  they  pleased  !  as  if  Congress,  or  any  one 
out  of  Bedlam,  had  ever  proposed  such  impertinent  nonsense. 
Surely  the  "  States  "  must  feel  grateful  for  such  forbearance  ex 
tended  to  them,  and  such  indulgence  allowed  them,  and  such 
high  consideration  manifested  for  them  in  such  slashing  times. 
But,  in  the  name  of  wonder,  and  in  virtue  of  the  inquiring  mood 
of  the  "  sober  second  thought,"  how  comes  it  that  "  States  "  were 
lugged  in  here,  in  such  company,  and  in  such  a  bill  ?     Why 
were  they  lugged  in  ?  for  it  was  not  accident.     Twice  they  are 
brought  in,  which  shows  it  was  not  chance-medley,  but  design  ; 
and  each  time  with  the  same  gracious  accord  of  the  same  privi 
leges,  and  the  same  equalization  and  yoking  with  the  Territories 
by  the  connective  conjunction  "or,"  which,  at  once,  levels  them 
as  equals,  and  yokes  them  as  fellows.     This  shows  design,  and 
precludes  the  possible  conception  of  accident.     Design,  then, 
being  established,  the  inquiry  recurs  :  What  was  it  ?     And  the 
answer  is,  It  was  to  promote  the  general  scheme  of  the  bill  ! 
which  was  to  mystify,  obfuscate,  bamboozle,  and  befog  the 
"squatter  sovereigns,"  by  making  them  believe  that  they  were 
equal  to  States,  and  might  have  black  slaves  or  not,  as  they  pleas 
ed,  while,  in  reality,  they  themselves  were  to  be  made  into  white 
slaves,  under  that  head-clause  in  the  bill  which  spreads  the  Con 
stitution  of  the  United  States  over  them,  carrying  "  niggerdom  " 
along  with  it !  and  fastening  It  on  their  sovereign  backs,  beyond 
their  power  to  kick  it  off,  or  the  power  of  Congress  to  lift  it  off, 
or  of  any  law  to  keep  it  off.     That  is  the  design  of  this  desecra 
tion—this  dragging  in  of  the  States— all  to  promote  the  general 
scheme  of  the  bill !  which  is  all  fraud,  cheat,  trick,  swindle, 
quackery,  charlatanry,  demagoguery,  bladdery,  and  legislative 
black-leggery.     That  is  its  design  !  and  if  its  fathers  think  other 
wise — for  there  were  many  fathers  and  no  mother  for  it let 


APPENDIX.  171 

them  out  with  their  tools  (wind  and  instrumental),  and  give  us 
a  touch  of  their  music.  In  the  mean  time  I  dismiss,  for  the  pres 
ent,  the  infamous  enactment,  passing  it  through  the  portals  of 
the  pillory — ears  cut  off,  back  scourged,  cheeks  smoking  under 
the  fiery  touch  of  the  hot,  red,  hissing  brand. 

The  bill  was  postponed  for  a  week,  and  such  a  week  of  po 
litical  gyrations  was  never  beheld.  If  Dryden  had  not  written 
so  long  before,  it  might  have  been  supposed  he  was  describing  it : 

"  Quick,  and  more  quick,  in  giddy  gyres  they  turn." 

First,  the  Daily  Union,  laureate  organ  to  the  administration, 
and  apparent  manager  of  the  democratic  party,  now  headed  by 
nullifiers,  and  gorged  with  renegades.  This  paper  had  gone  to 
sleep  on  the  night  of  the  22d  of  January  in  the  reiteration  of  all 
its  imprecations  on  the  Dixon  amendment,  and  all  its  exhorta 
tions  to  the  democracy  of  the  Union  to  stand  clear  of  it,  and  a 
special  warning  to  the  Southern  democracy  not  to  expect  any 
thing  so  preposterous  :  it  waked  up  on  the  morning  of  the  23d, 
rejoicing  in  the  adoption  of  that  amendment  in  the  substitute 
bill,  declaring  it  to  be  an  administration  measure,  making  adhe 
sion  to  it  a  test  of  political  orthodoxy,  and  the  sole  rule  of  pro 
motion,  or  even  of  retention  in  the  democratic  ranks.  Party 
outlawry  was  immediately  pronounced  against  every  halting 
brother  that  did  not  come  to  the  "  right  about,"  and  applaud  the 
measure  which  he  had  damned  the  day  before.  Next  the  ad 
ministration.  The  organ  proclaimed  it  to  be  a  unit  in  favor  of 
the  metamorphosed  amendment,  and  in  its  name  promised  re 
wards  and  punishments.  The  democrat  who  refused  to  turn 
was  to  be  excommunicated :  those  who  turned  were  to  be  the 
only  true  men :  all  who  lost  the  favor  of  their  constituents  by 
turning,  were  to  be  indemnified  with  public  office.  And  with 
these  declarations  corresponded  the  conduct  of  the  President, 
the  members  of  the  cabinet,  and  their  immediate  friends  on  the 
floor  of  Congress.  The  former  sent  for  members,  and  plied  them 
with  exhortations,  entreaties,  and  promises :  the  latter  openly 
denounced  hesitation  as  a  crime  to  be  punished — lauded  adhe 
sion  as  a  merit  to  be  rewarded — reproached  the  refractory  with 
abolitionism — and  made  the  support  of  the  new-fangled  amend 
ment  not  only  an  administration  measure,  but  a  measure  of  life 
and  death  to  the  administration,  in  the  struggle  for  which  no 


172  APPENDIX. 

neutrals  were  to  be  allowed.     Then  came  the  body  of  the  party, 
and  it  was  variously  affected.     The  venal  embraced  the  change 
with  alacrity,  the  instant  they  knew  the  administration   had 
adopted  it,  and  ferociously  assailed  all  who  did  not  change  with 
them.     The   timid  gave  in  slowly  and  sorrowfully,  declaring 
that  they  could  not  resist  an  administration  measure,  and  lose 
their  place  in  the  party.     The  distress  of  many  of  them  was 
pitiable  to  behold.     Their  fear  of  party  outlawry,  not  their  will, 
consented — showing  timidity  in  a  public  man  to  be  equivalent, 
in  its  effects,  to  downright  treachery.     Several  of  these  unwil 
ling   converts   became    champions   afterwards  of  the   detested 
measure,  and  thereby  ceased  to  be  pitiable,  and  became  con 
temptible.     A  few  old  democrats,  solitary  monuments,  stood 
firm  upon  the  faith  that  was  in  them ;  and  these  few  were  im 
mediately  denounced  as  whig  abolitionists,  and  visited  with  all 
the  punishment  the  administration  could  inflict  upon  such  men 
—the  exclusion  of  their  friends  from  oflice,  and  the  appointment 
of  the  most  vulgar  and  venomous  of  their  enemies.     Nullifiers  ex 
ulted,  and  became  the  leaders  of  the  democracy,  and  the  drivers 
of  the  administration.     They  got  possession  of  all  power,  and 
worked  it  to  the  steady  purpose  of  carrying  the  bill.     Patronage 
and  the  press — rewards  and  punishments — the  double  battery 
of  seduction  and  intimidation — were  all  in  their  hands  ;    and 
they  wielded  all  without  halt,  and  without  remorse.     And  to 
their  honor  it  must  be  said — personal  honor  in  the  midst  of  po 
litical  corruption — they  faithfully  complied  with  all  the  promi 
ses  they  had  made.     The  killed  and  wounded  were  provided  for ! 
office  to  all  who  lost  the  favor  of  their  constituents  !  favor  to  all 
that  turned !  open  arms  to  all  deserters  from  all  ranks  !  nulli- 
fiers  and  disunionists  preferred !  and  this  continued  to  be  the 
rule  of  action  during  the  whole  Pierce  administration.     Such 
conduct  required  much  defence,  and  received  a  large  instalment 
of  it  in  those  eleven  pages  of  the  last  annual  message,  which  it 
is  the  object  of  this  brief  notice  to  point  out  to  history  for  her 
severe  condemnation. 

This  is  the  record  history  of  that  abrogation  of  the  Missouri 
Compromise  into  which  the  administration  of  Mr.  Pierce  was 
forced ;  and  the  record  history  I  only  propose  to  give.  But 
there  is  well  authenticated  history  belonging  to  the  transaction 
which  does  not  appear  on  the  record;  as  that,  the  sudden 


APPENDIX.  173 

determination  to  adopt  the  Dixon  proposition  was  the  effect  of 
a  council,  which,  different  from  the  Scythians,  who  always  re 
solved  twice  before  they  acted— first  drunk  to  give  them 
courage,  then  sober  to  give  them  discretion — resolved  but  once ; 
and  that  in  the  former  predicament.  And,  also,  that  there  was 
hard  work  to  force  some  into  the  support  of  the  measure  who 
afterwards  became  its  champions — the  more  zealous,  in  order  to 
invest  forced  conversion  with  the  semblance  of  honest  conviction. 
But,  that  no  ingredient  of  infamy  should  be  wanting  in  such 
a  transaction,  the  element  of  fraud  was  added  to  all  the  other 
means  of  success.  The  case  was  this  :  The  Daily  Organ,  after 
having  diurnally,  for  many  days,  laid  down  the  law  of  political 
death  to  any  democrat  who  flinched  at  the  adoption  of  the 
Dixon- whig  proposition,  now  became  administration  democratic, 
and  was  authorized  to  publish  a  dispensation  as  to  "  details."  A 
special  article  was  published,  to  let  it  be  known  that  there  was 
to  be  freedom  of  action  on  the  "  details  "  of  the  bill— that  every 
democrat  was  not  to  be  required  to  vote  for  every  "  detail : " 
many  worthy  members  remonstrated  against  that,  as  requiring 
too  much.  Some  members,  friendly  to  the  repeal  of  the  Mis 
souri  Compromise,  could  not  subscribe  to  the  reasons  given  for 
it,  nor  to  the  future  grand  movement  of  which  it  was  to  be  the 
basis.*  Here  then  was  an  opening  for  the  loss  of  the  bill — its 

*  As  Mr.  Seward,  of  Georgia.  This  gentleman,  a  friend  to  the  object  of  the  bill, 
as  repealing  the  Missouri  Compromise,  and  determined  to  vote  for  it,  yet  objected  to 
the  reasons  for  their  untruth  and  unfairness,  saying :  "  I  oppose  the  details  of  this 
bill,  because  they  are  not  consistent  with  themselves,  or  with  the  transactions  to  which 
they  relate  ;  and  the  bill  itself  shows  that  it  was  manufactured  for  a  particular  pur 
pose.  Some  of  the  clauses  embraced  in  it,  conflicting  as  they  are,  were  introduced 
for  the  purpose,  in  my  opinion,  of  setting  up  a  principle  to  be  asserted  in  future,  and 
which  the  acts  of  1850  never  contained.  Now,  sir,  let  us  see.  We  are  called  upon 
here,  now  to  vote  for  this  bill,  which  is  not  drafted  in  the  ordinary  shape  of  legislative 
acts.  But  the  framers  of  this  bill  have  furnished  the  reasons,  within  the  bill  itself,  on 
which  we  must  act,  and  which  they  call  on  us  to  subscribe  to.  What  is  it  ?  They 
tell  us  that  the  law  of  1820,  being  inconsistent  with  the  legislation  of  1850,  therefore, 
that  the  act  of  1820  is  inoperative  and  void.  I  take  issue  with  them,  and  for  myself, 
occupying  the  position  that  I  do  as  a  Southern  man,  I  never  have  subscribed,  never 
will,  and  never  can  subscribe  to  the  doctrines  contained  in  the  acts  of  1850.  And 
now,  when  that  portion  of  the  South  having  feelings  in  common  with  me  on  this 
question,  have  waived  their  objections  to  it  for  the  purpose  of  uniting  witli  the  South, 
and  harmonizing  public  feeling  on  this  great  question,  it  is  put  here  as  the  basis  of 
some  grand  movement  in  this  country." — Mr.  Seward's  (of  Geo.~)  Speech.  Extract 

With  these  objections  to  the  details  of  the  bill,  and  desire  for  its  object,  Mr.  Seward 


174:  APPENDIX. 

loss  in  the  House  of  Representatives,  where  its  fate  was  most 
dubious.  It  would  be  easy  for  some  half  dozen  of  the  forced 
members,  by  a  critical  vote,  to  adopt,  or  reject  some  detail,  on 
which  the  fate  of  the  whole  bill  would  depend.  This  danger 
had  to  be  guarded  against ;  and  that  required  a  fraudulent  vio 
lation  of  a  rule  of  the  House — a  rule  specially  made  to  secure 
fair  legislation,  and  indispensable  to  it  where  the  previous  ques 
tion  has  become  the  ordinary  legislative  \veapon  in  passing,  or 
defeating  bills.  The  regular  effect  of  that  question,  when  or 
dered,  was  to  cut  off  all  debate,  and  all  amendments,  and  bring 
the  House  to  a  direct  vote  upon  the  passage  of  the  measure  ; 
and  this  question  came  to  be  so  abused  by  a  dominant  majority 
for  the  time  being,  (often  bringing  the  House  to  vote  in  total 
darkness  upon  the  measure,  or  cutting  off  amendments  neces 
sary  to  honest  legislation,)  that  all  parties  agreed  to  modify  its 
effect,  so  as  to  give  a  chance  to  the  House  to  understand  a  bill, 
and  a  chance  to  amend  it  by  offering  an  amendment,  to  be 
voted  upon  without  debate.  A  rule  was  accordingly  adopted 
for  that  purpose,  and  by  virtue  of  which  amendments  might  be 
offered  after  the  previous  question  had  been  ordered,  and  the 
member  offering  it  allowed  five  minutes  to  explain  its  object. 
This,  to  be  sure,  was  but  small  liberty  of  speech  in  a  legislative 
body,  boasting  of  the  largest  liberty  in  the  world ;  but,  small 
as  it  was,  it  was  not  allowed  to  be  used  in  the  abrogation  of  the 
most  momentous  law  that  Congress  ever  passed.  The  bill  wrent 
into  Committee  of  the  Whole :  it  was  the  House  bill :  and  the 
friends  of  the  bill,  being  a  majority,  moved  to  strike  out  the 
first  section.  It  was  done  !  and  the  bill  was  then  dead — in  the 
slang  language  of  the  House — its  head  cut  off.  Of  course, 
there  was  nothing  more  to  be  done  with  it  in  committee.  The 
House  was  the  next  place  for  it  to  appear,  and  the  question 
before  the  House  was  to  concur  with  the  committee.  This  re- 


fotmd  himself  in  the  dilemma  of  not  being  able  to  vote  at  all.  The  grand  movement, 
obscurely  hinted  at  by  Mr.  Seward,  was  immediately  remarked  upon  by  Mr.  Benton, 
who  interpreted  it  to  be  the  acquisition  of  Cuba,  and  large  slices  from  Mexico,  the 
latter  to  be  made  into  slave  soil  under  the  extension  of  the  Constitution  and  the  vote 
of  Southern  emigrants,  a  few  of  whom  would  overpower  the  feeble,  ignorant  Mexican 
population.  (See  Appendix  7F.)  On  these  details  of  the  bill,  Mr.  Benton  felt  certain 
of  smashing  it  up  upon  motions  to  amend  ;  but  all  such  motions  were  cut  off  by  the 
fraudulent  use  of  rules. 


APPENDIX.  175 

quired  every  supporter  of  the  bill  to  reverse  the  vote  he  had 
given  in  committee— to  vote  directly  contrary  to  what  he  had 
done  ;  and  this  change  was  made.  The  same  who  voted  to  kill 
the  bill  in  committee,  voted  to  bring  it  to  life  in  the  House— 
which  was  done.  The  bill  being  then  alive,  could  receive  an 
amendment :  and  instantly  there  was  a  motion  to  amend,  by 
striking  out  the  whole  of  the  House  bill,  and  substituting  the 
whole  of  the  Senate  bill — all  which  was  done  under  the  gag  of 
the  previous  question.  Though  called  an  amendment,  the  Sen 
ate  bill,  thus  adopted,  was  a  complete  bill  in  itself,  and  a  long 
one  of  thirty-seven  sections,  and,  as  a  lill,  requiring  three  read 
ings  on  different  days ;  but,  as  an  amendment,  to  be  read  once, 
which  it  had  not  been  when  offered  ;  but  a  reading  was  forced 
afterwards  under  the  rule  which  authorizes  a  demand  for  the 
reading  of  an  amendment.  Technically,  it  was  an  amendment : 
in  reality  a  bill;  and,  although  the  rules  required  but  one 
reading,  yet  it  was  an  outrage  upon  all  fair  legislation  to  drive 
it  through  as  it  was  done.  It  was  under  the  gag  of  the  previous 
question,  and  no  further  debate,  nor  the  least  amendment  per 
mitted—not  even  to  a  friend  of  the  measure. 

Viewing  the  whole  proceeding  as  a  fraud,  about  eighty 
members  refused  in  the  committee  to  vote  on  the  motion  to 
strike  out  the  enacting  clause  of  the  House  bill ;  and  when  the 
motion  was  made  for  the  committee  to  rise  and  report  the  bill 
to  the  House,  only  103  members  voted ;  to  wit :  101  for  the 
motion,  and  2  against  it !  upwards  of  100  refusing  to  vote  !  and 
among  the  number,  to  their  honor  be  it  said,  no  less  than  12 
who  were  for  the  bill.  Only  103  voting,  there  was  no  quorum, 
and  objection  was  made  to  rise  and  report.  The  temporary 
chairman,  Mr.  Olds,  of  Ohio,  decided  that  a  quorum  was  not 
necessary  to  authorize  the  committee  to  rise — which  was  true ; 
but  a  quorum  was  necessary  to  authorize  a  report  to  the  House, 
as,  without  a  quorum,  nothing  could  be  done  in  the  committee  ; 
and  the  rules  provided  for  the  case  by  requiring  the  roll  to  be 
called,  to  bring  in  the  absent  members.  The  chairman,  Mr. 
Olds,  reported  the  bill  and  the  proceedings  upon  it  to  the  House, 
without  telling  there  was  no  quorum.  Several  members  ob 
jected  on  the  report,  proclaiming  that  there  had  been  no  quorum 
to  authorize  it ;  but  the  Speaker  (Mr.  Linn  Boyd)  said  he  had  no 
"official"  notice  of  this  want  cf  a  quorum,  and  could  only  know 


176  APPENDIX. 

"officially"  what  the  chairman  of  the  committee  (Mr.  Olds)  re 
ported  to  him.  It  was  a  most  humiliating  scene— the  whole 
proceedings,  from  the  motion  in  committee  to  cut  off  the  head 
of  the  House  bill,  down  to  the  substitution  and  passage  of  the 
Senate  bill— the  House  being  in  a  continued  state  of  uproar 
through  a  most  extended  day  and  night  session,  all  motions  to 
adjourn  being  negatived,  and  the  result  received  in  the  galleries 
with  clapping  and  shouting— as  in  the  old  time  of  the  Bank  of 
the  United  States.* 


*  MONDAY,  MAY  22,  1854.  In  Committee  of  the  Whole,  Mr.  Olds  of  Ohio,  in  the 
Chair.  Home  bill  (No.  236)  for  the  Organization  of  Kansas  and  Nebraska  Territories, 
being  under  consideration.  Extract  from  the  Register  of  Debates. 

Mr.  Stephens,  of  Georgia:  "I  rise  to  a  privileged  question.  I  move  to  strike  out 
the  enacting  clause  of  this  bill.  I  will  state  to  the  committee,  and  I  want  the  atten 
tion  of  the  committee  to  my  object  in  making  that  motion ;  it  is  to  cut  off  all  amend 
ments,  and  to  have  this  bill  reported  to  the  House,  that  we  may  have  a  vote  upon  it." 
— Mr.  Chandler,  of  Pennsylvania:  "I  rise  solemnly  to  protest  against  this  extra  gag 
which  is  applied  to  the  passage  of  this  bill,  and  to  say,  that  while  it  is  possible  a 
majority  may  thus  ride  rough-shod."— (Loud  cries  of  "  Order"  and  great  excitement.) 
— Mr.  Orr,  of  South  Carolina:  "Does  my  friend,  from  Pennsylvania,  say  that  this  is 
not  in  strict  comformity  to  the  rules?  " — (Renewed  and  vociferous  cries  of  "  Order.")— 
Mr.  Chandler  :  "  I  am  satisfied  that  the  motion  now  made  is  one  that  was  not  contem 
plated  by  those  who  drew  up  these  rules ;  nor  was  it,  I  hope,  contemplated  by  those 
who  drove  us  from  the  regular  debate  in  the  committee,  and  told  us  to  take  shelter 
under  the  five  minutes  debate  rule." — Mr.  Washburn,  of  Maine:  "I  rise  to  a  question 
of  order.  It  is  this :  that  it  is  not  in  order  to  move  to  strike  out  the  enacting  clause 
of  the  bill,  while  the  House  is  in  Committee  of  the  Whole,  but  that  the  motion  can 
only  be  made  in  the  House." — (Loud  cries  of  "  Order"  and  "  Question.")— The  Chair 
man  overruled  the  point  of  order. — (Vociferous  cries  for  the  question.) — Mr.  Rogers, 
of  North  Carolina:  "I  wish  to  state  to  the  country,  and  to  the  members  of  the  House 
with  whom  I  have  been  acting  to  this  time,  that  I  desire  to  introduce  an  amendment  to 
this  bill.  I  feel  it  due  to  myself  to  state" — Chairman,  Mr.  Olds:  "Is  it  the  pleasure 
of  the  committee  that  the  gentleman  from  North  Carolina  be  heard  ?  " — (Cries  of  "  No  I 
No  !  No ! ") — Mr.  8 age,  of  New  York :  "I  desire  to  offer  an  amendment  to  the  amend 
ment." — The  Chairman,  Mr.  Olds:  "The  amendment  is  not  amendable." — Mr. 
Dickinson,  of  Massachusetts  :  "  I  desire  to  offer  an  amendment  to  the  bill  now  before 
the  Committee." — The  Chairman  :  "  It  is  not  in  order  while  a  motion  to  strike  out  the 
enacting  clause  is  pending." — Mr.  Dickinson:  "I  wish  to  have  the  bill  read." — 
Chairman :  "  It  is  not  in  order  to  have  it  read  while  a  motion  to  strike  out  the  enact 
ing  clause  is  pending." — (Incessant  cries  for  the  question.) — Question  taken :  103  for 
the  motion  to  strike  out,  2  in  the  negative. — Mr.  Dean,  of  New  York  (in  the  midst  of 
great  confusion)  :  "  I  hope  that  no  member  in  the  minority  will  vote  upon  the  question. 
Oppose  tyranny  by  revolution." — (Vehement  cries  of  "  Order,"  and  calls  for  the  Ser- 
geant-at-arms.) — Mr.  Lewis  D.  Campbell,  of  Ohio,  (passing  through  the  tellers)  :  "  There 
will  be  one  vote  against  the  motion  at  all  events." — (The  tellers  thereafter  reported 
103  ayes,  22  noes.) — The  Chair  announced  the  motion  carried. — Mr.  Richardson,  of 


APPENDIX.  177 

And  thus  fraud  was  superadded  to  all  the  other  iniquities  of 
the  bill,  and  its  passage — superadded  to  the  seduction,  intimida 
tion,  coercion,  the  moral  duresse  under  which  it  was  driven 
along,  and  the  false  pretexts  on  which  it  was  founded,  and  the 
sudden  adoption  of  it,  as  an  administration  democratic  measure,  * 
after  stigmatizing  it  as  a  whig  abolition  measure.  And  this  is 
the  measure,  thus  conducted  and  thus  passed,  to  the  laudation  of 


Illinois:  "I  move  that  the  Committee  rise,  and  report  to  the  House  the  action  of  the 
Committee." — The  question  for  the  Committee  to  rise  was  then  put,  and  only  103 
voted,  and  two  of  them  in  the  negative. — (Cries  of  "  No  quorum !  "  "  No  quorum !") — TJie 
Chair :  "  No  quorum  is  necessary  to  enable  the  Committee  to  rise." — The  Committee 
rose,  and  the  Chairman  reported  the  bill  to  the  House,  saying :  "  The  Committee  had 
directed  him  to  report  the  bill  back,  with  a  recommendation  to  strike  out  the  enacting 
portion  of  the  bill." — Mr.  Dean,  of  New  York :  "  I  rise  to  a  question  of  order.  It  is 
this :  That  less  than  a  quorum  of  the  Committee  of  the  Whole  cannot  report  a  bill  to 
the  House." — The  Speaker,  (Mr.  Boyd,}  being  in  the  Chair:  "The  Chair  has  no  of 
ficial  knowledge  of  the  number  of  votes  given  in  Committee." — Mr.  Hughes,  of  New 
York :  "  I  rise  to  a  question  of  order.  I  submit  that  the  report  of  the  Chairman  of 
the  Committee  of  the  Whole  on  the  state  of  the  Union,  shows  that  the  action  of  that 
Committee  is  tantamount  to  a  rejection  of  the  bill,  which  the  Committee  have  no 
power  to  do." — Tlie  Speaker :  "  Will  the  gentleman  from  New  York  indicate  the  rule 
under  which  it  denies  the  Committee  that  power  ?  " — Mr.  Hughes :  "  It  is  under  rule 
119,  and  under  that  rule  the  Speaker  of  the  House  once  decided  in  the  same  manner. 
The  Speaker  refused  to  entertain  the  report  of  a  Committee  upon  the  ground  that  it 
was  tantamount  to  a  rejection  of  the  bill,  which  was  beyond  the  power  of  the  com 
mittee.  The  note  to  the  119th  rule  gives  the  same  construction  to  the  rule,  and  upon 
that  I  raise  my  question  of  order." — The  Speaker :  "  Would  remark  that  the  same 
note  declares  the  very  object  of  the  rule  was  to  supersede  and  obviate  the  offering  of 
further  amendments." — Mr.  Meacham,  of  Vermont :  "  I  rise  to  a  question  of  privilege 
under  the  3-ith  rule,  which  provides  that  '  where  debate  is  closed  by  order  of  the  House, 
any  member  shall  be  allowed  in  Committee  five  minutes  to  explain  any  amendment, 
after  which  any  member,  who  shall  first  obtain  the  floor,  shall  be  allowed  to  speak  five 
minutes  in  opposition  to  it.'  Now,  I  submit  that  the  rights  of  members  under  this 
rule  have  not  been  respected  in  Committee." — The  Speaker :  "  That  is  a  question  for 
the  Committee  to  decide  for  itself.  It  is  not  competent  for  the  Chair  to  know  officially 
what  has  taken  place  in  Committee  except  through  the  report  of  its  Chairman." — 
Mr.  Richardson,  of  Illinois :  "I  demand  the  previous  question  upon  concurring  with 
the  report  of  the  Committee." — Mr.  Ellison,  of  Ohio :  "  I  rise  to  a  question  of  order. 
The  26th  rule  provides  that  wheu  the  Committee  of  the  Whole  on  the  state  of  the 
Union  finds  itself  without  a  quorum,  the  Chairman  shall  cause  the  roll  to  be 
called.  Now,  Sir,  I  submit,  that  the  Committee  did  find  itself  without  a 
quorum — that  it  was  not  competent  for  it  to  report  the  bill  to  the  House 
without  a  quorum — and  that  the  roll  was  not  called  as  the  rule  directs." — 
The  Speaker :  "  That  is  a  question  which  the  gentleman  should  have  raised  in 
Committee,  and  which  it  is  not  competent  for  the  House  to  have  any  knowledge  of, 
unless  so  reported  by  the  chairman  of  the  Committee." — Mr.  Campbell,  of  Ohio :  "  I 
12 


178  APPENDIX. 

which,  and  to  the  condemnation  of  all  who  opposed  it,  eleven 
pages  of  his  last  message  was  devoted  by  President  Pierce. 

But  the  message  was  not  allowed  to  stop  at  one  falsification 
of  history,  large  as  that  was,  but  was  made  to  go  on  to  another, 
supposed  to  be  written  by  the  same  hand ;  and,  in  fact,  a  sup 
plement  and  continuation  of  the  first  one.  It  undertakes  to  give 
the  state  of  parties  in  the  United  States,  classifying  them,  and 
assuming  to  say  which  is  culpable  for  the  present  distracted 
condition  of  the  country ;  and,  of  course,  putting  all  censure 
upon  one,  and  all  praise  upon  the  other.  It  sees  but  two  par 
ties — abolitionists,  and  democrats :  and  lays  all  blame  upon  the 
former.  The  message  is  severe  upon  the  abolitionists  ;  *  and  so 


would  make  an  appeal  to  the  gentleman  from  Illinois  (Mr.  Richardson),  to  withdraw 
his  call  for  the  previous  question  until  I  can  make  a  suggestion  in  relation  to  this  hill." 

Mr.  Richardson :  "  The  appeal  is  in  vain.     I  decline  to  withdraw  the  call." (The 

House  refused  to  concur  with  the  Committee  in  striking  out  the  enacting  clause  of  the 
bill.) — Mr.  Richardson :  "  I  now  move  to  amend  the  hill  by  striking  out  all  after  the 
enacting  clause,  and  inserting  in  lieu  thereof  what  I  send  to  the  Clerk's  table :  and 
upon  that  proposition  I  demand  the  previous  question."— (It  was  the  substitute  bill 
from  the  Senate  which  was  thus  sent,  and  upon  which  the  previous  question  was  de 
manded  before  it  was  even  read,  as  an  amendment.) — Mr.  Dean  :  "  I  call  for  the  read 
ing  of  the  substitute." — (It  was  read,  consisting  of  37  sections.) — The  vote  on  adopting 
the  substitute  was  then  taken  under  the  previous  question,  and  instantly  Mr.  Richard 
son  moved  the  third  reading  of  the  bill  under  the  same  gag :  and  it  was  passed — not 
one  word  being  spoken,  or  any  amendment  allowed  to  it.) — The  announcement  of 
the  vote  was  received  with  prolonged  clapping  of  hands,  and  hisses,  both  in  the  House 
and  the  galleries,  and  cries  of  "  Order!  "  "  Order!  " 

*  "  To  accomplish  their  objects,  they  dedicate  themselves  to  the  odious  task  of  de 
preciating  the  government  organization  which  stands  in  their  way,  and  of  calumni 
ating,  with  indiscriminate  invective,  not  only  the  citizens  of  particular  States,  with 
whose  laws  they  find  fault,  but  all  others  of  their  fellow-citizens  throughout  the  coun 
try,  who  do  not  participate  with  them  in  their  assaults  upon  the  Constitution,  framed 
and  adopted  by  our  fathers,  and  claiming  for  the  privileges  it  has  secured,  and  the 
blessings  it  has  conferred,  the  steady  support  and  grateful  reverence  of  their  children. 
They  seek  an  object  which  they  well  know  to  be  a  revolutionary  one.  They  are  per 
fectly  aware  that  the  change  in  the  relative  condition  of  the  white  and  black  races  hi 
the  slaveholding  States,  which  they  would  promote,  is  beyond  their  lawful  authority ; 
that  to  them  it  is  a  foreign  object ;  that  it  cannot  be  effected  by  any  peaceful  instru 
mentality  of  theirs ;  that  for  them,  and  the  States  of  which  they  are  citizens,  the  only 
path  to  its  accomplishment  is  through  burning  cities,  and  ravaged  fields,  and  slaugh 
tered  populations,  and  all  there  is  most  terrible  in  foreign,  complicated  with  civil 
and  servile  war;  and  that  the  first  step  in  the  attempt  is  the  forcible  disruption 
of  a  country  embracing  in  its  broad  bosom  a  degree  of  liberty,  and  an  amount  of  in 
dividual  and  public  prosperity,  to  which  there  is  no  parallel  in  history,  and  substituting 
in  its  place  hostile  governments,  driven  at  once  and  inevitably  into  mutual  devastation 


APPENDIX.  179 

far  as  the  severity  is  confined  to  them — to  persons  who  deny 
property  in  slaves,  and  labor  to  defeat  that  property — I  have 
nothing  to  say,  and  leave  them  to  the  tender  mercies  of  the 
presumed  writer  of  that  part  of  the  message.  He  was  long 
enough  among  them  to  know  their  designs,  and  it  would  not 
become  me  to  hazard  speculative  opinions  against  his  positive 
knowledge.  But,  to  include  all  under  that  definition  who  were 
opposed  to  the  abrogation  of  the  Missouri  Compromise,  and  all 
who  object  to  the  further  extension  of  slavery  into  free  territory, 
and  especially  into  territory  free  under  the  laws  of  other  coun 
tries  and  to  be  slaves  under  ours :  to  include  all  such  in  the 
class  of  abolitionists,  is  to  libel  ninety-five  per  centum  of  the 
population  of  the  free  States.  I  claim  for  this  ninety-five  per 
centum  total  exemption  from  any  part  in  word,  deed,  or  wish, 
in  producing  the  present  slavery  agitation.  It  comes  exclusively 
from  the  nullifiers  and  the  abolitionists  playing  into  each  other's 
hand,  and  embroiling  the  country  with  their  equal  fanaticism 
for  and  against  slavery,  and  their  criminal  designs  against  the 
Union.  The  message  is  unjust  in  throwing  upon  the  abolition 
ists  (even  those  properly  so  called)  the  exclusive  censure  of 
producing  the  present  troubles.  They  are  culpable,  but  not 
exclusively,  or  even  equally  so.  There  is  another  party  more 
culpable  than  they,  and  whom  the  message  qualifies  as  patriotic, 
and  who  originated  this  agitation, — who  began  it,  and  keep  it 
up ;  but  who,  without  the  co-operation  of  the  abolitionists, 
could  never  have  brought  it  to  a  head.  These  are  the  Southern 
nullifiers  and  secessionists,  Siamese  twins  to  the  Northern  abo 
litionists,  and  the  two  as  indispensable  to  each  other  as  the  two 
halves  of  a  pair  of  shears,  neither  of  which  can  cut  without 
being  joined  to  the  other. 

The  brief  story  of  this  close  co-operation  between  Southern 
nullifiers  and  Northern  abolitionists,  is  this :  In  the  year,  1830, 
some  Southern  politicians,  having  some  private  griefs  of  their 

and  fratricidal  carnage,  transforming  the  now  peaceful  and  felicitous  brotherhood  into 
a  vast  permanent  camp  of  armed  men,  like  the  rival  monarchies  of  Europe  and  Asia. 
Well  knowing  that  such,  and  such  only,  are  the  means  and  the  consequences  of  their 
plans  and  purposes,  they  endeavor  to  prepare  the  people  of  the  United  States  for  civil 
war,  by  doing  every  thing  in  their  power  to  deprive  the  Constitution  and  the  laws  of 
moral  authority,  and  to  undermine  the  fabric  of  the  Union  by  appeals  to  passion  and 
sectional  prejudice,  by  indoctrinating  its  people  with  reciprocal  hatred,  and  by  edu 
cating  them  to  stand  face  to  face  as  enemies,  rather  than  shoulder  to  shoulder  as 
friends." — Message,  p.  9. 


180  APPENDIX. 

own  to  redress,  and  some  ambitious  objects  of  their  own  to  ac 
complish,  conceived  that  a  separation  of  the  States,  and  the 
erection  of  a  new  Republic  South,  was  the  way  to  accomplish 
their  purposes :  and  at  that  object  (the  segregation  of  the  States 
south  of  the  Potomac)  they  went  to  work — pretexting  their  op 
erations  with  "  the  oppressions  of  an  unconstitutional  protective 
tariff."  "With  this  view,  and  upon  this  pretext,  the  first  South 
ern  (South  Carolina)  Convention  was  held,  November,  1832, 
which  passed  the  ordinance  of  nullification  and  secession — de 
claring  the  revenue  laws  null  and  void,  fixing  the  first  day  of 
February,  then  next  ensuing,  for  the  secession,  (unless  Congress 
in  the  mean  time  should  abandon  pro  tective  tariff ;)  and  levy 
ing  an  army  to  maintain  her  attitude.  The  Jackson  Proclama 
tion  of  December,  1832,'*  denouncing  the  penalties  of  high  trea 
son  upon  all  who  should  commit  the  "  overt  act "  under  that 
ordinance,  and  the  full  belief  that  he  would  do  what  he  said, 


*  "  A  recent  proclamation  of  the  present  Governor  of  South  Carolina  has  openly 
defied  the  authority  of  the  Executive  of  the  Union,  and  general  oixlers  from  the  head 
quarters  of  the  State,  announced  his  determination  to  accept  the  services  of  volunteers, 
and  expressed  his  helief  that,  should  their  country  need  their  services,  they  will  be 
found  at  the  post  of  honor  and  duty,  ready  to  lay  down  their  lives  in  her  defence. 
Under  these  orders  the  forces  referred  to  are  directed  to  '  hold  themselves  in  readiness 
to  take  the  field  at  a  moment ;  '  and  in  the  city  of  Charleston,  within  a  collection  dis 
trict  and  a  port  of  entry,  a  rendezvous  has  been  opened  for  the  purpose  of  enlisting 
men  for  the  magazine  and  municipal  guard.  Thus,  South  Carolina  presents  herself  in 
the  attitude  of  hostile  preparation,  and  ready  even  for  military  violence,  if  need  be,  to 
enforce  her  laws  for  preventing  the  collection  of  the  duties  within  her  limits.  Under 
these  circumstances,  there  can  be  no  doubt  that  it  is  the  determination  of  the  authori 
ties  of  South  Carolina  to  carry  into  effect  their  ordinance  and  laws,  (for  nullification 
and  secession,)  after  the  first  of  February  next.  This  solemn  denunciation  of  the  laws 
and  authority  of  the  United  States,  has  been  followed  up  by  a  series  of  acts,  on  the 
part  of  the  authorities  of  that  State,  which  manifest  a  determination  to  render  inevita 
ble  a  resort  to  those  measures  of  self-defence  which  the  paramount  interest  of  the 
Federal  Government  requires,  find  upon  the  adoption  of  which,  that  State  will  proceed 
to  execute  her  purpose  of  withdrawing  from  the  Union.  By  these  various  proceed 
ings,  therefore,  the  State  of  South  Carolina  has  forced  the  General  Government,  una 
voidably,  to  decide  the  new  and  dangerous  alternative,  of  permitting  a  State  to  obstruct 
the  execution  of  the  laws  within  its  limits,  or  seeing  it  attempt  to  execute  a  threat  of 
withdrawing  from  the  Union.  In  my  opinion,  both  purposes  are  to  be  regarded  as 
revolutionary  in  their  character  and  tendency,  and  subversive  of  the  supremacy  of  the 
laws  and  of  the  integrity  of  the  Union.  In  this  posture  of  affiiirs,  the  duty  of  the 
Government  seems  to  be  plain.  Duty  to  the  rest  of  the  Union  demands  that  open  and 
organized  resistance  to  the  laws,  should  not  be  executed  with  impunity."— Proclama 
tion,  December,  1832. 


APPENDIX.  181 

balked  that  project,  and  gave  birth  to  the  tariff  compromise 
of  1833,  by  which  protective  tariff  (as  a  pretext  for  secession) 
was  laid  aside,  to  be  substituted  by  the  slavery  agitation, 
generated  out  of  the  alarms  of  the  slave  States  for  their  lives 
and  property  through  fear  of  the  anti-slavery  "  aggressions,  en 
croachments,  and  crusades "  of  the  North  against  the  South. 
The  substitution  was  instant,  and  notorious.  On  returning 
home  from  Congress,  Mr.  Calhoun  told  his  friends  that  the 
South  could  never  be  united  against  the  North  on  the  tariff 
question — that  the  sugar  interest  of  Louisiana  would  keep  her 
out — and  that  the  basis  of  Southern  union  must  be  shifted  to  the 
slave  question;  and,  shifted  accordingly  it  immediately  was. 
Incontinently  all  the  nullification  newspapers  opened  for  seces 
sion  for  that  new  cause,  filling  the  country  with  alarm  for  the 
safety  of  slave  property,  and  spreading  the  terrors  of  servile  in 
surrection — inevitable  consequence  of  the  abolition  designs.  The 
whole  South  immediately  took  fire.  Before  the  month  of  June 
—that  is  to  say,  in  less  than  three  months  after  the  protective 
tariff  pretext  for  secession  had  been  laid  aside — the  new  pretext 
had  been  installed  in  its  place,  and  so  fully  developed  as  to  be 
seen  by  all  observers.  Mr.  Clay  saw  it,  and  on  the  28th  of 
May,  in  a  letter  to  Mr.  Madison,  expressed  his  apprehensions 
of  this  new  danger,  and  declared  his  disbelief  of  any  foundation 
for  the  alarm  which  was  attempted.  Mr.  Madison  immediately 
replied,  reciprocating,  both  his  apprehensions  and  his  disbelief; 
and,  in  a  brief  paragraph,  fixing  all  the  points — date,  locality, 
actors,  pretext,  and  mode  of  operation — in  this  new  phase  of 
the  secession  movement ;  and  branding  it  with  as  much  repro 
bation  as  the  amiable  moderation  of  his  temper  would  permit. 
That  letter  becomes  a  starting  point  in  this  inquiry,  which  his 
tory  will  seize  upon,  and  find  in  it  the  key  which  unlocks  the 
door  that  gives  the  inside  view  of  all  the  machinations  which 
have  led  to  the  present  portentous  slavery  agitation.  In  that 
letter  to  Mr.  Clay,  he  said  :— 

"  It  is  painful  to  see  the  unceasing  efforts  to  alarm  the  South,  by 
imputations  against  the  North  of  unconstitutional  designs  on  the  sub 
ject  of  the  slaves.  You  are  right,  I  have  no  doubt,  that  no  such  inter 
meddling  disposition  exists  in  the  body  of  our  Northern  brethren. 
Their  good  faith  is  sufficiently  guaranteed  by  the  interest  they  have  as 


182  APPENDIX. 

merchants,  as  ship-owners,  and  as  manufacturers,  in  preserving  a  union 
with  the  slaveholding  States.  On  the  other  hand,  what  madness  in  the 
South  to  look  for  greater  safety  in  disunion.  The  danger  from  the 
alarms  is,  that  the  pride  and  resentment  excited  by  them  may  be  an 
overmatch  for  the  dictates  of  prudence,  and  favor  the  project  of  a  South 
ern  Convention,  insidiously  revived,  as  promising  by  its  councils,  the 
best  securities  against  grievances  of  every  sort  from  the  North." 

This  is  the  stand-point — this  letter  from  Mr.  Madison  to  Mr. 
Clay — from  which  to  view  and  to  understand,  the  whole  nature, 
origin,  and  design,  and  operative  means,  of  the  slavery  agita 
tors  which  has  brought  our  country  to  its  present  distracted 
condition.  It  puts  the  linger  upon  every  part  of  the  disease. 
Mr.  Madison  sees,  and  sees  with  pain,  the  efforts — the  unceas 
ing  efforts — made  to  alarm  the  South  with  the  fear  of  uncon 
stitutional  designs  in  the  North,  upon  slave  property.  He  does 
not  believe  in  the  considerable  extent  of  any  such  designs  on 
the  part  of  our  Northern  brethren,  and  in  that  disbelief  he  con 
curs  with  Mr.  Clay — a  concurrence  which  shows  that  Mr.  Clay 
had  expressed  the  same  sentiment  in  the  letter  which  he  was 
answering.  He  believed  there  was  danger  from  the  alarm, 
though  unfounded ;  and  that  this  fear  of  danger,  acting  on  the 
passions,  might  be  an  overmatch  for  prudence,  and  favor  the 
revival  of  that  convention,  which  he  qualified  as  " insidious" 
It  was  the  convention  which  passed  the  secession  ordinance  to 
which  he  referred,  and  which,  having  failed  to  combine  the 
South  against  the  North  on  the  tariff  pretext,  was  now  to  at 
tempt  the  same  thing  on  a  slavery  pretext.  And  it  was  re 
vived,  and  for  that  purpose,  and  has  been  kept  alive  ever  since 
— having  become  a  new  Southern  institution,  sitting  annually, 
and  vindicating  its  title  to  the  character  of  "  insidious,"  (so  far 
as  the  managers  are  concerned,)  by  masking  its  real  object  of 
segregating  the  Southern  States  by  presenting  an  endless  suc 
cession  of  barren  projects  for  their  amelioration.  Every  thing 
which  Mr.  Madison  foresaw  in  1833,  we  have  all  seen  since — the 
unceasing  attempts  to  alarm  the  slave  States — its  success  in  re 
viving  the  "insidious  "  conventions — its  effect  on  the  pride,  and 
resentment  of  the  Southern  people — and  the  mastery  which  the 
milliners  have  acquired  in  gaining  control  in  all  the  slave  States, 
and  bringing  them  to  act  as  a  unit  against  the  North  in  the  Federal 


APPENDIX.  183 

elections  and  legislation.  His  letter,  and  that  of  Mr.  Clay,  are 
cardinal  to  the  history  of  these  times,  and  cannot  be  overlooked, 
or  discredited,  by  any  one  who  seeks  either  to  teach  truth,  or 
to  learn  it,  on  this  eventful  period  of  American  history.  They 
mark  the  origin  of  the  slavery  agitation.  They  show  its  local 
ity,  and  fix  it  in  the  South :  they  show  its  pretext,  and  expose 
its  want  of  truth :  they  point  to  its  designs,  and  probable  suc 
cess — and  in  that  they  were  prophetic.  But  this  was  not  the 
only  letter  of  Mr.  Madison  to  this  effect.  The  last  three  years 
of  his  life  were  occupied,  and  rendered  miserable,  by  the  pro 
gress  which  nullification,  through  an  unfounded  slavery  alarm, 
was  making  in  getting  control  of  the  State  governments,  with 
the  undisguised  object  of  a  new  Southern  confederacy.  All 
his  letters  of  this  period  were  filled  with  this  subject.  Many 
of  these  letters  have  been  saved  from  loss  by  Mr.  James  C. 
M'Guire,  of  Washington  City,  and  a  quarto  volume  of  them 
beautifully  printed  for  presents  to  the  friends  of  the  great  states 
man — among  them,  several  to  his  early  and  life-long  friend, 
Governor  Edward  Coles,  now  of  Philadelphia.  In  one  of  these, 
of  date  August,  1834,  he  says : — 

"  On  the  other  hand,  what  more  dangerous  than  nullification,  or 
more  evident  than  the  progress  it  continues  to  make,  either  in  its 
original  shape,  or  in  the  disguises  it  assumes  ?  And  for  its  progress, 
hearken  to  the  tone  in  which  it  is  now  preached.  Cast  your  eye  on  its 
increasing  minorities  in  most  of  the  Southern  States,  without  a  decrease 
in  any  one  of  them.  Look  in  Virginia  herself,  and  read  in  the  gazettes, 
and  in  the  proceedings  of  popular  meetings,  the  figure  which  the  anar 
chical  principle  now  makes,  in  contrast  with  the  scouting  reception  given 
to  it  but  a  short  time  ago.  A  susceptibility  of  the  contagion  in  the 
Southern  States  is  visible ;  and  the  danger  not  to  be  concealed,  that 
the  sympathy  arising  from  known  causes,  and  the  inculcated  impression 
of  a  permanent  incompatibility  of  interest  between  the  North  and  the 
South,  may  put  it  in  the  power  of  popular  leaders,  aspiring  to  the  high 
est  stations,  to  unite  the  South,  on  some  critical  occasion,  in  a  course 
that  will  end  in  creating  a  new  theatre  of  great  though  inferior  extent. 
In  pursuing  this  course,  the  first  and  most  obvious  step,  is  nullifica 
tion;  the  next,  secession;  and  the  last,  a  farewell  separation." 

This  is  enough  to  mark  the  origin,  the  authors,  and  the  pur 
poses  of  the  present  slavery  agitation,  and  to  expose  the  falsity 


184  APPENDIX. 

of  the  message  in  throwing  all  upon  the  North  ;  but  it  is  only 
the  beginning  of  the  public  proof  on  that  head.  In  the  year 
1835,  Mr.  Calhoun  undertook  to  install  the  agitation  in  the  Sen 
ate  of  the  United  States  :  the  design  was  rebuked,  and  repulsed 
by  Southern  Senators — Mr.  Bedford  Brown,  of  North  Carolina ; 
Mr.  John  P.  King,  of  Georgia.  Foiled  in  1835,  he  returned  to 
the  work  in  1838,  and  was  again  rebuked  by  slave  State  Sena 
tors — Mr.  Clay,  Mr.  Crittenden,  Mr.  Strange,  of  North  Caroli 
na  ;  Mr.  Eichard  II.  Bayard,  of  Delaware  ;  Mr.  William  Camp 
bell  Preston,  of  South  Carolina  ;  and  by  Mr.  Buchanan,  of 
Pennsylvania.  He  brought  in  a  set  of  resolutions,  five  in  num 
ber,  intended  to  be  a  digest  of  territorial  slavery  law,  all  bot 
tomed  upon  the  right  of  Congress  to  legislate  upon  slavery  in 
Territories,  (for  the  dogma  of  no  such  power  was  not  invented  at 
that  time,  and  he  had  not  then  forgot  his  support  of  the  Missouri 
Compromise,)  arid  deprecating  the  abuse  of  the  right.  In  support 
of  these  resolutions  Mr.  Calhoun  delivered  many  speeches,  all 
tending  to  promote  slavery  agitation,  and  to  excite  the  South 
against  the  North ;  for  which  he  was  rebuked  by  all  the  Sena,- 
tors  named.* 

But  I  am  not  now  writing  the  history  of  the  present  slavery 
agitation — a  history  which  the  young  have  not  learnt,  and  the 
old  have  forgotten,  and  which  every  American  ought  to  under 
stand.  I  only  indicate  cardinal  points  to  show  its  character ; 
and  of  these  a  main  one  remains  to  be  stated.  Up  to  Mr. 
Pierce's  administration  the  plan  had  been  defensive — that  is  to 


*  By  some  of  them  severely — by  the  mildest  more  temperately — but  not  less  deci 
sively  ;  as  this  from  Mr.  Buchanan  : — "7  cannot  believe  that  the  Senator  from  South  Ca 
rolina  {Mr.  Calhoun)  has  taken  the  lest  course  to  attain  these  results  (quieting  agitation.) 
This  is  the  great  centre  of  agitation  :  from  this  Capitol  it  spreads  over  the  whole  Union. 
I,  therefore,  deprecate  a  protracted  discussion  of  the  question  here.  It  can  do  no  good,  but 
may  do  much  hamn  loth  in  the  North  and  in  the  South."  Mr.  Buchanan  then  added,  that 
the  Northern  members  who  stood  up  for  the  rights  of  the  South,  and  had  to  bear  the 
brunt  of  the  battle  at  home,  were  forced  into  false  positions,  and  made  to  fight  aboli 
tionism  on  the  right  of  petition,  and  placed  between  the  fire  of  friends  and  foes — saying, 
"  Thus  we  stand :  and  those  of  us  in  the  North  who  must  sustain  the  brunt  of  the  battle  are 
forced  into  false  positions.  Abolitionism  thus  acquires  force  by  bringing  to  its  aid  the  right 
of  petition,  and  the  hostility  which  exists  at  the  North  against  the  doctrines  of  nullification. 
The  fact  is,  and  it  cannot  be  disguised,  that  those  of  us  in  the  Northern  States  who  have  deter 
mined  to  sustain  the  rights  of  the  Southern  States  at  every  hazard,  are  placed  in  a  most 
embarrassing  situation.  We  are  almost  literally  between  two  fires.  While  in  front  we  are 
assailed  by  the  abolitionists,  our  own  friends  in  the  South  are  constantly  driving  us  into  po 
sitions  ichere  their  enemies,  and  our  enemies,  may  gain  important  advantages" 


APPENDIX. 


say,  to  make  the  secession  of  the  South  a  measure  of  self-defence 
against  the  abolition  encroachments,  aggressions,  and  crusades 
of  the  North  :  in  the  time  of  Mr.  Pierce,  the  plan  became  offen 
sive  —  that  is  to  say,  to  commence  the  expansion  of  slavery,  and 
the  acquisition  of  territory  to  spread  it  over,  so  as  to  overpower 
the  North  with  new  slave  States,  and  drive  them  out  of  the 
Union.  In  this  change  of  tactics  originated  the  abrogation  of 
the  Missouri  Compromise,  the  attempt  to  purchase  the  one  half 
of  Mexico,  and  the  actual  purchase  of  a  large  part  ;  the  design 
to  take  Cuba  ;  the  encouragement  to  Kinney  and  to  Walker  in 
Central  America  ;  the  quarrels  with  Great  Britain  for  outlandish 
coasts  and  islands  ;  the  designs  upon  the  Tehuantepec,  the  Nic 
aragua,  the  Panama,  and  the  Darien  routes  ;  and  the  scheme  to 
get  a  foothold  in  the  Island  of  San  Domingo.  The  rising  in 
the  free  States  in  consequence  of  the  abrogation  of  the  Missouri 
Compromise,  checked  these  schemes,  and  limited  the  success  of 
the  disunionists  to  the  revival  of  the  agitation  which  enables 
them  to  wield  the  South  against  the  North  in  all  the  federal 
elections  and  federal  legislation.  Accidents  and  events  have 
given  this  party  a  strange  pre-eminence.  Under  Jackson's  ad 
ministration,  proclaimed  for  treason  ;  since,  at  the  head  of  the 
Government  and  of  the  Democratic  party.  The  death  of  Har 
rison,  and  the  accession  of  Tyler,  was  their  first  great  lift  ;  the 
election  of  Mr.  Pierce  was  their  culminating  point.  It  not  only 
gave  them  the  government,  but  power  to  pass  themselves  for 
the  Union  party,  and  for  Democrats  ;  and  to  stigmatize  all  who 
refused  to  go  with  them,  as  disunionists,  and  abolitionists.  And 
to  keep  up  this  classification,  is  the  object  of  the  eleven  pages 
of  the  message  which  calls  for  this  Review—  unhappily  assisted 
in  that  object  by  the  conduct  of  a  few  real  abolitionists,  (not 
five  per  centum  of  the  population  of  the  free  States  ;)  but  made 
to  stand,  in  the  eyes  of  the  South,  for  the  whole. 


L86  APPENDIX. 

IV. 

ABROGATION  OF  THE  MISSOURI  COMPROMISE :    ITS  ULTERIOR  OBJECTS. 

THOSE  who  suppose  that  there  was  no  object  in  view  in  this 
abrogation  but  merely  to  make  Kansas  a  free  State,  are  far 
behind  the  state  of  the  facts,  and  can  have  had  but  little  oppor 
tunity  of  knowing  the  intentions  of  the  prime  movers  of  that 
measure — those  who  ruled  the  council  that  commanded  it. 
Certainly  that  wras  one  of  the  objects  ;  but  there  wTere  others 
far  beyond  it,  far  transcending  it  in  importance  ;  and  of  which 
the  establishment  of  Kansas  as  a  slave  State  was  only  an  intro 
duction,  and  a  means  of  attainment.  To  form  the  slave  States 
into  a  unit  for  federal  elections  and  legislation,  by  the  revival 
of  the  slavery  question,  was  one  object,  counting  upon  the  fed 
eral  patronage  to  gain  as  much  help  from  the  free  States  as 
would  give  the  slave  States  the  majority.  Yast  acquisitions  of 
free  territory  to  the  southward,  to  be  made  slave  (besides  Cuba), 
was  another  object;  and  for  this  purpose  the  principles  of  the 
Kansas-Nebraska  bill  were  doubly  contrived;  first,  to  carry 
slavery  into  these  free  Territories  by  the  Constitution  ;  next,  to 
establish  it  by  the  inhabitants  of  the  States,  enough  Southern 
people  going  in  to  dominate  over  the  feeble  and  ignorant 
natives.  Separation  of  the  slave  States,  or  domination  over  the 
free  States,  driving  out  of  the  Union  the  Korth  Atlantic  States, 
was  to  be  the  consequence  of  this  consolidation  of  the  slave 
States  and  vast  acquisition  of  Southern  territory.  All  these 
objects  would  have  been  brought  out,  on  motions  to  amend  the 
bill,  if  amendments  and  discussion  had  been  allowed  :  as  it  was, 
they  were  only  glanced  at  by  a  couple  of  speakers,  and  one  of 
these  enigmatically  and  gently,  and  the  other  more  clearly,  but 
stintedly  in  the  few  minutes  which  were  allowed  him,  and 
which  were  in  fact  borrowed  out  of  another  member's  time. 
Mr.  Sewarcl,  of  Georgia,  was  one ;  Mr.  Benton,  of  Missouri,  the 
other.  Mr.  Seward  was  thoroughly  in  favor  of  the  repeal  of 
the  Missouri  Compromise,  but  could  not  stomach  the  pretexts 
on  which  the  repeal  was  founded,  nor  favor  the  ulterior  objects 
of  which  it  was  the  forerunner,  nor  respect  a  piece  of  legislation 
with  a  demagogical  stump  speech  in  its  belly.  He  expressed 
himself  gingerly,  but  strongly  (considering  his  geographical 


APPENDIX.  187 

position  and  party  relations)  and  clearly  enough  to  be  under 
stood,  and  also  to  show  more  than  party  fealty  permitted  him 
to  tell.  He  opposed  the  details  of  the  bill,  and  showed  wherein 
and  why.  First:  "These  details  were  not  consistent  with 
themselves,  nor  with  the  transactions  to  which  they  relate  : "  a 
mode  of  expression,  to  expose  a  double  falsehood,  sufficiently 
emphatic  in  a  friend.  Then :  "  That  these  details  were  manu 
factured  for  a  particular  purpose :"  the  word  manufactured  here 
being  clearly  equivalent  to  fabricated,  and  the  purpose  intended 
being  sufficiently  indicated  as  selfish  and  sinister,  by  the  use  of 
the  word  particular  instead  of  public.  Then :  "  Some  of  the 
clauses  in  it  were  introduced  for  the  purpose  of  setting  up  a 
principle  to  be  acted  on  in  future,  and  which  the  acts  of  1850 
never  contained  " — a  significant  intimation  of  future  operations, 
to  be  pretexted  upon  the  acts  of  1850,  falsified  for  the  purpose. 
Then  again,  he  says :  "  We  are  called  upon  now  to  vote  for  this 
bill,  which  is  not  drafted  in  the  ordinary  shape  of  legislative 
acts."  And  well  might  Mr.  Seward  object  to  such  a  shape  of 
drafting  laws,  for  never  was  such  a  farrago  of  unlegislative  and 
demagogue  stuff  put  into  any  bill  before.  Mr.  Seward  then 
denied  that  the  acts  of  1850  authorized  it,  declaring  that  he 
would  subscribe  to  no  such  thing  ;  and  offered  to  "join  issue" 
upon  it.  Far  from  joining  issue,  all  chance  for  it  was  cut  off 
by  the  manner  of  dropping  the  House  bill  and  driving  the 
substitute  bill  through.  Then  Mr.  Seward  alluded  to  "  a  grand 
movement"  which  was  in  contemplation,  professing  not  to 
know  what  it  was,  for,  probably  as  disaffected  to  the  bill,  he  was 
not  let  into  the  secret,  but  clearly  showing  that  there  was  some 
"grand  movement"  on  foot.  Mr.  Benton  got  a  chance  to  say 
a  few  words,  and  interpreted  that  "  grand  movement  "  to  be  the 
seizure  of  Cuba,  and  the  purchase  of  the  northern  half  of 
Mexico.  He  got  a  chance  to  say  a  few  words  by  a  contrivance — 
a  representative  from  Illinois,  Mr.  Knox,  who  had  the  floor  for 
an  hour,  giving  him  some  minutes  of  his  time — for  which  he 
and  the  speaker  were  called  to  account,  when  it  was  seen  what 
was  said.  The  Congressional  Globe  shows  this  scene  :— 

FRIDAY,  May  19,  1854:  (late  in  the  evening.) 
Mr.  KNOX  was  assigned  the  floor. 
Mr.  WRIGHT,  of  Pennsylvania.     If  the  gentleman  from  Illinois  will 


188  APPENDIX. 

give  way  for  a  moment,  I  will  move  that  the  committee  take  a  recess 
until  seven  o'clock. 

Mr.  BENTON.  If  no  gentleman  wants  the  floor  now,  I  wish  to 
occupy  it  for  about  ten  minutes. 

The  CHAIRMAN.  The  gentleman  from  Illinois  (Mr.  Knox)  is  en 
titled  to  the  floor,  the  Chair  having  recognized  him.  If  the  gentleman 
from  Illinois  will  yield  the  floor  for  ten  minutes,  and  if  the  committee 
will  be  willing  that  the  gentleman  from  Missouri  (Mr.  Benton)  may 
proceed,  he  may  do  so. 

The  gentleman  from  Illinois  yielded  the  floor,  and  general  assent 
was  given  to  the  gentleman  from  Missouri  to  proceed. 

Mr.  BENTON  said :  Mr.  Chairman,  I  have  nothing  more  to  say  to 
this  bill  on  account  of  its  interference  with  the  Missouri  Compromise. 
On  that  point  I  have  spoken  my  share,  and  shall  not  recur  to  it  again. 
I  pass  on  to  a  new  point — one  significantly  revealed  to  us  some  ten  days 
ago  by  a  Representative  from  Georgia,  the  member  from  the  first  con 
gressional  district  of  that  State,  (Mr.  Seward.)  That  gentleman  spoke 
against  the  bill  in  a  way  entirely  accordant  to  my  own  opinions ;  but 
came  to  the  conclusion  that  he  would  vote  for  it,  *  and  gave  his  reasons 
for  doing  so — reasons  which  had  not  been  mentioned  by  any  other 
speaker,  and  which  struck  me  as  momentous,  and  worthy  to  arrest  the 
attention  of  the  House,  and  of  the  country.  He  objects  to  the  bill 
because  it  is  unfounded  and  contradictory  in  its  statements  and  assump 
tions — inconsistent  with  itself,  with  the  act  of  1820,  and  of  the  acts  of 
1850 — because  it  was  manufactured  for  a  particular  purpose,  and  is  of 
no  value  in  itself  to  the  slave  States ;  but  which  commands  his  support, 
as  a  Southern  man,  on  account  of  its  ulterior  operations,  as  containing  a 
principle  to  be  asserted  in  future,  and  which  was  put  into  the  bill  to 
become  the  basis  of  some  grand  movement  in  this  country.  I  will  read 
what  he  said,  as  the  proper  way  of  doing  justice  to  his  clear  and  well- 
expressed  opinions — to  his  momentous  revelations — and  as  the  best  way 
of  availing  myself  of  his  important  declarations.  I  find  them  thus  in 
the  official  copy  of  the  speech  : — 

"  I  oppose  the  details  of  this  hill,  hecause  they  are  not  consistent  with  themselves 
or  with  the  transactions  to  which  they  relate  ;  and  the  hill  itself  shows  that  it  was 
manufactured  for  a  particular  purpose.  Some  of  the  clauses  embraced  in  it,  conflict 
ing  as  they  are,  were  introduced  for  the  purpose,  in  my  opinion,  of  setting  up  a  prin 
ciple  to  he  asserted  in  future,  and  which  the  acts  of  1850  never  contained.  Now,  sir, 
let  us  see.  \Ve  are  called  upon  here  now  to  vote  for  this  bill,  which  is  not  drafted  in 

*  This  was  said  before  the  vote  was  taken,  when  it  was  supposed  that  Mr.  Seward, 
notwithstanding  his  objections,  would  vote  with  his  party  for  the  bill ;  but  he  did  not. 
He  did  not  vote  at  all,  neither  for  nor  against. 


APPENDIX.  189 

the  ordinary  shape  of  legislative  acts.  But  the  framers  of  this  bill  have  furnished  the 
reasons,  within  the  bill  itself,  on  which  we  must  act,  and  which  they  call  on  us  to 
subscribe  to.  What  is  it  ?  They  tell  us  that  the  law  of  1820,  being  inconsistent  with 
the  legislation  of  1850,  therefore  that  the  act  of  1820  is  inoperative  and  void.  I  take 
issue  with  them ;  and,  for  myself,  occupying  the  position  that  I  do  as  a  Southern  man, 
I  never  have  subscribed,  never  will,  and  never  can  subscribe  to  the  doctrines  con 
tained  in  the  acts  of  1850.  My  objections  to  the  acts  of  1850  are  known  at  home. 
They  are  recorded  in  the  proceedings  of  the  convention  which  took  place  in  Georgia 
in  1850.  I  was  a  member  of  that  convention.  I  voted  against  the  Georgia  platform 
on  principle.  And  now,  when  that  portion  of  the  South  having  feelings  in  common 
with  me  on  this  question,  have  waived  their  objections  to  it  for  the  purpose  of  uniting 
with  the  South,  and  harmonizing  public  feeling  on  this  great  question,  it  is  put  in  here 
as  the  basis  of  some  grand  movement  in  this  country.  I  know  not  what  that  move 
ment  is." 

I  concur  in  the  truth  and  justice  of  every  thing  which  the  member 
from  Georgia  has  here  said,  but  differ  from  him  in  the  conclusion  to 
which  he  arrives — that  of  voting  for  the  bill ;  and  find  in  his  reasons 
for  that  vote,  additional  reasons  for  my  own  vote  against  it ;  but  he 
votes  as  a  Southern  man,  and  votes  sectionally.  I  also  am  a  Southern 
man,  but  vote  nationally  on  national  questions.  He  sees  in  it  a  prin 
ciple  set  up  which  is  false  and  useless  in  its  application  to  Nebraska, 
but  which  is  to  be  asserted  in  future,  and  which  is  put  into  the  bill  as 
the  basis  of  some  grand  impending  movement  in  this  country.  Of  the 
nature  of  this  movement,  which  is  to  be  so  grand,  and  at  the  same  time 
sectional,  the  member  declares  himself  to  be  ignorant ;  and  that  igno 
rance,  I  would  suppose,  should  be  a  reason  for  holding  back  from  a  bill 
which  commits  its  supporters  to  great  unknown  things.  That  is  the 
way  it  works  with  me.  I  also  am  ignorant,  that  is  to  say,  uninformed 
of  this  grand  movement  which  is  to  be  in  this  country ;  but  I  believe 
in  it,  and  so  believing  am  the  more  against  the  bill.  I  am  against  any 
thing  that  I  do  not  understand,  and  which  nobody  will  explain  to  me, 
and  which,  according  to  my  own  short  and  dubious  lights,  is  dangerous 
to  the  peace  and  honor  of  the  country.  I  believe  in  the  futility  of  this 
bill — its  absolute  futility  to  the  slaveholding  States — and  that  not  a 
single  slave  will  ever  be  held  in  Kansas  or  Nebraska  under  it,  (even 
admitting  it  to  be  passed.)  Though  adapted  to  slave  labor  in  two  of 
its  great  staples,  (hemp  and  tobacco,)  I  do  not  believe  that  slaves  will 
ever  be  held  there.  The  popular  vote  will  expel  them.  Kansas  is 
contiguous  to  middle  and  southern  Missouri,  where  slave  labor  is  profit 
able,  and  slaves  held  in  great  number — a  single  owner  within  two  hours' 
ride  of  the  line  holding  one  hundred  more  than  the  five  hundred  of 
Randolph  of  Roanoke ;  and  five  thousand  in  his  county  alone  ;  but  the 
holder  of,  slaves  will  have  but  one  vote,  and  will  be  beat  at  the  polls  by 


190  APPENDIX. 

the  many  who  have  none.  In  relation  to  Kansas  and  Nebraska,  then, 
I  hold  the  bill  to  be  a  deception  and  a  cheat — what  gamesters  call 
gammon,  congressmen  buncombe,  and  seamen  a  tub  to  the  whale :  that 
is  to  say,  an  ambidextrous  operation  upon  the  senses  of  confiding  people, 
by  which  they  are  made  to  see  what  is  not,  and  not  to  see  what  is. 
This  is  what  I  believe ;  and  not  being  obliging  enough  to  join  in  a 
scheme  of  self-deception,  or  to  suffer  a  game  of  deception  to  be  played 
upon  me,  I  must  now  turn  my  back  upon  the  illusions  of  this  Nebraska 
bill,  and  look  out  for  its  real  object — the  particular  purpose  for  which  it 
was  manufactured,  and  the  grand  movement  of  which  it  is  to  be  the 
basis. 

In  this  search  I  naturally  look  about  into  the  signs  and  rumors  of 
the  times,  and  into  the  cotemporaneous  events  which  may  connect  them 
selves  with  the  grand  movement  in  question ;  and  think  I  find  them  in 
two  diplomatic  missions,  of  which  the  country  has  heard  much — but  not 
all.  I  speak  upon  rumor,  but  neither  tell,  nor  believe,  the  half  of  the 
half  of  what  I  hear ;  but  believe  enough  to  excite  apprehension,  and  to 
justify  inquiry.  "What  is  a  state  secret  in  the  city  of  Washington,  is 
street  talk  in  the  city  of  Montezuma. 

First.  The  mission  of  Mr.  Gadsden  to  Santa  Anna.  It  must  have 
been  conceived  about  the  time  that  this  bill  was ;  and,  according  to 
transpiring  accounts,  must  have  been  a  grand  movement  in  itself — 
$50,000.000  for  as  much  Mexican  territory  on  our  southern  border  as 
would  make  five  or  six  States  of  the  first  class.  The  area  of  the  acqui 
sition,  as  I  understand  it,  was  to  extend  from  sea  to  sea,  on  a  line  that 
would  give  us  Santander,  Monterey,  Saltillo,  Parras,  Sonora,  and  all 
Lower  California.  This  was  certainly  a  large  movement,  both  in  point 
of  money  and  of  territory,  and  also  large  in  political  consequence  ;  and 
clearly  furnishing  a  theatre  for  the  doctrine  of  non-intervention,  if  there 
should  be  any  design  to  convert  the  newly-acquired  territory  from  free- 
soil,  that  it  is,  into  slave  soil  that  it  might  be  desired  to  be.  Here, 
then,  I  believe  I  have  found  one  branch  of  the  grand  movement ;  and 
although  Mr.  Gadsden  returned  from  his  mission  with  a  small  slice  only 
of  the  desired  territory,  yet  he  has  returned  to  his  post,  and  may  have 
better  luck  on  a  second  trial — if  Santa  Anna  escapes  from  the  speckled 
Indians  (Los  Indios  Pintos)  who  have  him  at  bay  in  the  Sierra.  I  say 
nothing  on  the  merits  of  this  new  acquisition,  only  that  it  is  an  old 
acquaintance  with  me,  having  first  heard  of  it  in  November,  1846,  and 
afterwards  in  March,  1848 — at  which  latter  time  it  was  proposed  in  the 
Senate,  (by  Mr.  Davis,  of  Mississippi,)  on  the  ratification  of  the  Guada- 
lupe  Hidalgo  treaty;  and  rejected  by  the  Senate.  I  voted  against  the 
Santander  and  Monterey  line  then,  and  have  not  seen  cause ^to  change 


APPENDIX.  191 

my  opinion.     [Here  Mr.  Benton  read  the  article  proposed  by  Mr.  Davis 
for  the  new  line.] 

Secondly.  The  mission  of  Mr.  Soule  to  Madrid — also  a  grand  move 
ment  in  itself,  if  reports  be  true — two  hundred  and  fifty  millions  for 
Cuba ;  and  a  rumpus  kicked  up  if  the  island  is  not  got.  Here  again 
might  be  found  a  case  for  the  non-intervention  principle  ;  but  of  that  I 
say  nothing,  because  I  know  nothing,  and  wish  to  know  something.  Of 
the  acquisition  itself  I  say  nothing  now,  but  did  say  something,  about 
forty-four  years  ago,  in  a  Nashville  newspaper,  published  by  Thomas 
Eastin,  called  the  Impartial  Eeview  ;  in  which  I  discussed  Cuba  as  the 
geographical  appurtenance  of  the  valley  of  the  Mississippi,  and  eventu 
ally  to  become  its  political  appurtenance ;  but  to  be  got  with  honor 
whenever  it  was  got ;  and  in  all  that  faith  I  still  remain  firm.  No  dis 
honor  !  no  stain  on  the  bright  and  spotless  fame  left  us  by  our  fathers ! 

Mr.  Chairman,  I  discuss  nothing  in  relation  to  those  rumored  acqui 
sitions  of  the  Island  of  Cuba  and  a  broad  side  of  Mexico ;  I  only  call 
attention  to  them  as  probable  indexes  to  the  grand  movement  of  which 
the  member  from  Georgia  gave  us  the  revelation,  and  which  no  one  has 
denied.  According  to  him,  and  according  to  my  own  belief,  this  Ne 
braska  bill  is  only  an  entering-wedge  to  future  enterprises — a  thing 
manufactured  for  a  particular  purpose — a  stepping-stone  to  a  grand 
movement  which  is  to  develop  itself  in  this  country  of  ours.  I  wish  to 
know  what  that  movement  is.  I  have  a  right  to  know,  to  enable  me  to 
discharge  my  duties  understandingly ;  and  I  respectfully  crave  the  in 
formation  from  those  who  have  the  conducting  of  the  bill. 

Mr.  SMITH,  of  Virginia. — I  would  like  to  know,  Mr.  Chairman,  how 
much  of  this  time  consumed  in  the  remarks  of  the  gentleman  from 
Missouri,  is  to  be  taken  out  of  the  hour  allotted  to  the  gentleman  from 
Illinois  ? 

The  CHAIRMAN. — The  gentleman  from  Missouri  occupied  twenty 
minutes.  As  a  matter  of  course,  that  time  must  be  taken  out  of  the 
hour  allowed  to  the  gentleman  from  Illinois.  It  is  distinctly  understood 
that  the  Chair  did  not  authorize  the  gentleman  from  Missouri  to  take 
the  floor  from  the  gentleman  from  Illinois. 

Mr.  KNOX. — I  am  very  happy  in  having  yielded  to  the  gentleman 
from  Missouri  so  much  of  my  time,  because  what  he  may  have  said  is  of 
far  greater  interest,  and  of  far  more  importance  to  the  country,  than  any 
poor  remarks  of  mine  would  have  been. 

[This  declaration  was  greeted  with  warm  applause.] 

) 

This  is  the  end  of  the  reported  proceedings,  and  not  a  word 
was  said  more  on  the  ominous  subject  broached  by  Mr.  Seward, 


192  APPENDIX. 

of  Georgia,  and  pursued  by  me,  (by  the  favor  of  Mr.  Knox,  of 
Illinois,  in  giving  me  part  of  his  time,)  for  twenty  minutes,  for 
which  he  had  to  defend  himself;  and  did  it  bravely  and  gener 
ously,  commanding  the  applause  of  the  House.  There  was  spirit 
in  the  House,  and  if  a  few  of  us  could  have  had  a  chance  at  the 
bill,  it  would  have  been  smashed  into  atoms,  and  the  country 
roused  to  a  knowledge  of  the  meditated  crimes.  But  there  was 
no  chance.  A  vulgar,  infuriate  tyranny  prevailed — greater  than 
ever  was  seen  in  the  French  National  Convention  in  the  Reign 
of  Terror  ;  for  even  there,  debate  could  not  be  entirely  silenced. 
Members  carried  arms  there  ;  and  brave  men  (but  no  braver 
than  we  were)  with  loaded  pistols  in  their  hands,  would  say  what 
they  pleased,  and  see  Robespierre,  Marat,  Collot,  Merlin,  turn 
pale  under  their  terrific  denunciations.  We  could  not  carry 
arms  into  the  national  hall  of  legislation,  and  parliamentary 
rules  signified  nothing  against  an  inexorable  majority,  some 
subdued  by  their  fears,  some  seduced  by  the  administration, 
some  debauched  by  gambling,  and  drinking,  and  plunder  legis 
lation  ;  and  all  driven  along  by  the  furious  nullifiers,  to  whom 
the  administration  had  surrendered  the  government.  Still  there 
was  a  plenty  of  good  material,  if  it  could  have  been  worked  up. 
Many  voted  with  the  majority,  who  only  waited  a  favorable 
moment  to  attack  the  tyranny  of  which  they  were  the  unwilling 
and  mortified  instruments.  The  war  upon  the  details  of  the 
bill  would  have  furnished  the  opportunity.  Successive  attacks 
upon  the  details,  even  with  the  five  minutes'  speeches,  would 
have  been  enough  ;  for,  in  certain  conditions  of  all  public  bodies 
— the  inflamed  and  excited  condition — long  speeches  are  not 
wanted  :  they  are  even  bad  ;  and  a  sudden,  vehement,  and  brief 
appeal  to  the  passions  has  often  sufficed  to  overturn  a  powerful 
majority,  or  even  a  whole  government.  Buf  the  fraudulent  use 
of  the  rules,  and  the  fatality  of  having  all  questions  of  order  de 
cided  against  us,  left  us  without  rights,  or  favors,  in  presence  of 
an  inexorable  majority,  which,  governed  by  party  machinery, 
drove  on  to  their  object  regardless  of  law,  decency,  or  shame. 


APPENDIX.  193 


A    LAST   WO  ED. 

I  was  breaking  down  under  the  terrible  attack  which  kept 
me,  for  two  weeks,  face  to  face  with  death,  when  I  was  writing 
this  Examination  ;  and  had  to  break  off  abruptly — leaving  two 
entire  heads  untouched,  and  not  even  alluded  to.  Besides  these 
two  heads,  now  postponed,  there  was  another  which  I  wished 
to  bring  before  the  American  people,  to  wit :  The  conduct  of  an 
Administration  and  a  Senate  (called  Democratic),  which  has 
done,  and  is  doing,  what  no  former  administration  and  Senate, 
(whether  "Whig,  Federal,  Democratic,  or  Republican,)  ever  did ! 
that  is  to  say,  suppressing  and  concealing  the  evidences  of  a 
foreign  negotiation,  after  the  negotiation  is  all  over  and  done 
with  ;  which  negotiation  is  surrounded  by  circumstances  which 
connect  it  with  a  scheme  to  bring  on  a  separation  of  the  slave 
from  the  free  States :  I  speak  of  the  Gadsden  negotiation,  and 
of  the  fifty  millions  he  was  authorized  to  give  for  a  broad  side 
of  Mexico,  with  a  port  on  the  Gulf  of  California,  and  a  railway 
to  it,  to  suit  the  United  States  South  after  the  separation — to 
which  point  all  the  schemes  for  a  Southern  Pacific  Railroad 
tend,  while  the  credulous  public  are  made  to  believe  they  are 
hunting  the  best  way  to  California,  where  they  mean  it  shall 
never  go,  because  California  rejects  slavery.  Every  Union- 
loving  State  Legislature  should  post  its  Senator  under  instruc 
tions  to  bring  those  hidden  negotiations  to  the  public  view, 
though  with  but  little  prospect  of  getting  the  whole  truth  after 
so  many  years'  suppression — the  same  reasons  which  have  in 
duced  suppression  thus  far,  being  equally  strong  to  make  it  per 
petual  ;  so  that  much  may  be  gone  past  recovery. 

WASHINGTON  CITY,  September,  1857. 


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